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Goals and Means in Law†

Csaba Varga*

Pázmány University – Faculty of Law, Hungary

[Abstract] Papal encyclicals and their interest in the value-implementation rather than the mere self-fulfilment of the formalistic schemes of democracy, parliamentarism, human rights and of the overall setup of legal instrumentality are examined in parallel with the duality of contradicting arguments in legal technique, focussing on either formal consequence or materialisation in contents, such as ones by Shammaï vs. Hillel, Labeo vs. Capito, moreover, Kelsen vs. Schmitt, as well as positivism versus post-war Radbruch. Conceiving of law as both craftsmanship and arts, i.e., ars in Latin, presents law in a state of equilibrium from the very beginning, in which the questions of “wherefrom?” and “along what standards?” to start reasoning are complemented by those of “where to?” and “arriving at what result?” to channel reasoning. Genuine use of legal technique may help in that continuous pondering and balancing, together with the subordination of institutional operation to the cause of the person, his family and nation, taken as the reproductive community for the development of the person and his dignity, will be increasingly realised in everyday judicial practice.

In the age of modern formal law, most of our social institutions are organised and regulated in depth, according to a bureaucratic model. Since the analyses carried out by Max Weber, we have been fully aware of the significance and long-term impact of this fact and also of the reifying influence it may exert on the underlying relations.[1]

In the field of jurisprudence, it was pointed out by the research of, e.g., Friedrich Carl von Savigny, François Gény, Jean Dabin and others[2] that in the course of its application, law can only be actualised as contextualised in one or another setting, by the use of given legal techniques. However, given that reductio ad infinitum is impossible, the technique of law-application not only defies further normative definition but enables applications with equal chances in logic that point to expressly opposite and practically mutually excluding directions.[3] Option for inclusio or exclusio, argumentum a simile or argumentum e contrario, analogia or want of it, searching for a basic underlying identity or marking a difference—this is what Civil Law and Common Law justices are used to deciding on at all times in their professional life, be their legal cultures based on posited rules, on guiding casual (precedental) decision or on finding a formula (writ) outlining in what and how to proceed. But the answer to their query in what way to act and proceed will be quite simple: they act by following patterns—as long as they can; then, by resorting to their own decisions—when there is no pattern available to provide guidance.

Therefore, for its practical materialisation, law depends to a considerable extent on the mode of selecting out and actualising those technical and intepretive, argumentative and evidentiary means and procedures that are accepted in law to both shape and channel the formation of the judge’s final conviction, over which the law has no control any longer. Owing to such mediators being wedged in the process, the reifying power of the law gets back into the hand of man (with no relief any longer from his personal responsibility), who has equal chance to use or misuse (under-use or over-use) the law, making more or less optimum use, as the case may be, of his predecessors’ heritage and his own talent.[4]

For this very reason, our theoretical interest in and responsibility for the workings of law can by far not stop at the point where the law is posited. Just like “law in books” [somewhat as a Ding an sich] becomes tangible for us [as a Ding für uns] in the reality of the “law in action”,[5] law cannot be considered otherwise than a process. And taken as a process, law works in function of its environment and can only be assessed through its conditioning and contextualising culture.[6]

*

The philosophy placing the person in the centre as formulated by the Supreme Pontiff John Paul II during His philosopher’s life earlier in Poland and which became integrated within the social teaching of the Church by now,[7] reflects methodologically similar insights regarding institutional operation in general. Notably,

“Man cannot relinquish himself or the place in the visible world that belongs to him; he cannot become the slave of things, the slave of economic systems, the slave of production, the slave of his own products. A civilization purely materialistic in outline condemns man to such slavery”,

the more so because

“What is in question is the advancement of persons, not just the multiplying of things that people can use. It is a matter […] not so much of »having more« as of »being more«.”[8]

And it is man at all times who bears responsibility for this all, which he may not in the least shift to man-created institutions, superstructure or society. Not any given arrangement of any certain human community is a purpose in and for itself. And it cannot be used as a self-justification either. We have to be aware that

“Human rights and the rights of God go hand in hand.”[9]

All our call-words and the institutions constructed by humans are fruits of man’s striving for good, of man’s struggles and partial successes to the extent that man has indeed every reason to protect the products of his efforts. However, the significance of all such fruits cannot lie in themselves but exclusively in the values they may assist to implement. Man’s ultimate evangelical purpose is not just to devise instruments but to properly serve the human personality and its unalienable dignity here on Earth, through developing the suitable media to care for them. To quote just one example,

“In fact, democracy itself is a means and not an end, and »the value of a democracy stands or falls with the values which it embodies and promotes«.”[10]

This same relation of goals and means (with the latter necessarily subordinated to the former) arises also in connection with the evaluation of world-wide integration into one unity, as one of the main tendencies underlying our age and determining our future.

“Globalization, a priori, is neither good nor bad. It will be what people make of it. No system is an end in itself, and it is necessary to insist that globalization, like any other system, must be at the service of the human person; it must serve solidarity and the common good.”[11]

Obviously, if “globalization is ruled merely by the laws of the market applied to suit the powerful, the consequences cannot but be negative.”[12] The outcome seems evident if, as illustrated by the Papal examples, the effect of globalisation manifests itself in

“absolutizing the economy, unemployment, the reduction and deterioration of public services, the destruction of the environment and natural resources, the growing distance between rich and poor, unfair competition which puts the poor nations in a situation of ever increasing inferiority.”[13]

No institution is therefore innocent by itself and no institution carries its value alone in its self. The only reason for institutional existence can be the service of humans in the sense that

“the person in the community [...] must, as a fundamental factor in the common good, constitute the essential criterion for all programmes, systems and regimes.”[14]

Searching even deeper for the core of the “internal need” or “interior demand of the human being”,[15] at the service of which human efforts shall be aimed, we inevitably arrive at the realm of values: values which we ourselves have to reveal and identify in the created world, based on our own culture, experienced and continuously improved, helping us orient ourselves in the world, in which we move by giving an account of our existence as humans. All this testifies to an unchallengeable priority amongst values. In terms of this, we can agree that

“Ethics demands that systems be attuned to the needs of man, and not that man be sacrificed for the sake of the system. […] Globalization must not be a new version of colonialism. It must respect the diversity of cultures which […] are life’s interpretive keys”. Aware of some contemporary threats, the Pope asserts that what is desirable as an outcome is “not […] a single dominant socio-economic system or culture which would impose its values and its criteria on ethical reasoning”, that is, “not […] absolute relativization of values and the homogenization of life-styles and cultures”.[16]

It is the person’s decision about his own life with respect to the principle of subsidiarity that is absolutely vital. And this also involves the respect of the levels of decision for that sovereignty can be realised on both an individual and a statal plane.

“The essential sense of the State, as a political community, consists in that the society and people composing it are master and sovereign of their own destiny. This sense remains unrealized if, instead of the exercise of power with the moral participation of the society or people, what we see is the imposition of power by a certain group upon all the other members of the society.”[17]

In the light of the teaching, even the achievements of several centuries of our Euro-Atlantic development, taken for granted so far as democracy, parliamentarism and human rights are,[18] can in themselves be hardly conceived of as anything more than faceless techniques. Or, they are nothing but neutral instruments in se and per se, carrying values exclusively through the realisation of goals to the service of which they have once been invented..[19] Yet, if this is the case, they can only be taken as universal (or are suitable to universalisation) as abstract potentialities, for exclusively the depth of how they actually fill their roles under hic et nunc given conditions may qualify their concrete materialisation eventually good, beneficial or exemplary. Whether our duty is to operate or develop (by deepening or extending or reconsidering) them, as may be required at a given time, we must not forget that they are only justifiable to the extent they encourage the development of the person directly or indirectly.[20]

We have to be aware of the fact that none of them does prevail by itself as part of the nature or as an entity destined from the outset to share or shape humans’ lives. For instance,

“Democracy, as an idea as well as a practice, does not come by itself; it is neither an intellectual evidence nor a spontaneous behavior. On the contrary […].”[21]

All these are artificial human constructions,[22] skills developed through the constantly controlled experience accumulated through generations,[23] sustained and substantiated by the unceasing human effort at socialisation, re-generation and re-conventionalisation.

Examining the lessons drawn from anthropology in the perspective of the history of philosophy,[24] we may arrive at a reconstruction according to which the person (including his personality and individuality) can only develop in human history as conditioned by forms of association that are indispensable for the biological as well as the social reproduction of humankind, known—in want of better identification of types—as the family as well as the nation. Person, his/her family and nation: these are the basic constituents to be taken as axiomatic foundations, successively building upon one another as balanced in their mutual preconditioning and support. Therefore, no external limitation (even in the name of such usually absolutised human values as freedom and self-determination) can be imposed upon and to the detriment of any of them. In consequence, any other specifically human value is thus reflexive upon and instrumental to them—in function of the optimum development of the person and his/her family and nation.[25]

Obviously, family and nation, as media of humans’ societal reproduction, are instrumental for the person to develop with dignity realised. Human rights, fundamental freedoms as well as the legal values of freedom and self-determination are instrumental to the former.[26] Finally, the values of legal formalism such as legal security, equality before the law or the law’s foreseeability, are instrumental as merely formal mediatory values to all the above foundational values.

Thus, the purport of institutional operation is necessarily more than the destiny of itself; therefore, it cannot be controlled, qualified or justified merely by reference to and in terms of its institutional constitution. The observance of a set of rules defining institutional operation in its formalised homogeneity is only sufficient for the operation in question to be qualified as complying with its own rules but not for anything more or else. No doubt, institutions are expected to operate regularly, however, certainly they have not been established for the very reason to be regular for their own sake (so to say, in a l’art pour l’art way). On the whole, something far more is at stake here than the one suggested by “the doctrine of the supremacy of the greater number, and that all right and all duty reside in the majority”.[27] For “The imperium of truth is not and cannot be democratic.”[28] Each and every institution points beyond its own self. “Democracy does not itself introduce values, nor does democracy itself produce values. It mediates between values.”[29] The institution is intermediary in assisting to implement imported values in their respectively professional homogenised fields.

Thus, institutional existence cannot be taken as an in itself sufficient totality. Its homogenised operation is only intended to maximise its instrumental efficiency. However, there is a price to be paid for this. For the institution as such will be dependent on external factors and, if getting into improper hands or into the attraction of improper intentions, it may become exposed to all kinds of uncontrollable powers. This is the underlying reason why the Social Teaching of the Catholic Church has to emphasise in describing the interrelation between large systems that

“if there is no ultimate truth to guide and direct political activity, then ideas and convictions can easily be manipulated for reasons of power. As history demonstrates, a democracy without values easily turns into open or thinly disguised totalitarianism.”[30]

Consequently, the human person with his own personal faith, conscience, values and conviction shall not be neglected. Likewise, personal responsibility with the ethos of moral commitment and the predisposition for re-consideration (adaptation and response to new challenges) any time when needed is part of the scheme.[31]

*

Approaching legal dilemmas with such a sensitivity, what we can see is that due to the inherent polarity arising from the law’s formalism, the development of legal thought (both in judicial practice and legal scholarship) often takes place through generating (positing) in themselves utterly artificial antithetical concepts which may then abruptly switch over into one another. The conflicts, for instance, of Shammaï and Hillel in classical Jewish law or of the Proculians and the Sabinians (following Labeo and Capito respectively) in Roman law equally illustrate the collision of form and contents with their emphasis on strictness of being tied to the text, on the one hand, and the liveability of the entire regulatory arrangement with the realisation of the originally contemplated goals in mind, on the other.[32] Moreover, listing more examples up to the tragic recent past of 20^th-century European history, the controversy between Hans Kelsen and Carl Schmitt during the Weimar crisis can—apart from their positions being thoroughly twisted under the constraint of conditions—also be construed as the (equally dangerous, if taken as exclusive) alternative of either a purely formal procedurality justifying any result (maybe destroying even the last chance of national advancement) from the outset or a substantivity calling for a sovereign decision with the expectation of being able to finally reach the underlying goal.[33] Or, the conditional acceptance of formal requirements, that is, the justification of procedurally defined paths exclusively in function of their suitability for achieving the actual purpose (with searching for the mutuality of satisfactory balances instead of the one-sidedness of exclusivities) is all but new recognition in the history of legal thought.[34] This is what presents the application of any norm in the context of the pondering between the goods to be protected and the goals to be achieved, just as Jesus Christ did, when He declared, as against the Pharisean interpretation of the Sabbath’s law: “So it is lawful to do good on the sabbath”.[35]

The dramatic self-transcendence by Gustav Radbruch—who had to realise on the ruins of the Third Reich that his earlier dedication to security in law might destruct the basic need of justice, moreover, it might also leave the damages caused by the facts of crying injustice both unremedied and unremediable in the law[36]—served as an empirical proof for him and for us all that any one-sidedness (no matter how eternal and guaranteed the human principles involved seem) may have a destructive impact upon law. The solution is obviously not just stumbling about between the extremes but pondering upon the ancient Roman wisdom. Namely, conceiving of law as both craftsmanship and arts, i.e., ‘ars’ in Latin, presents law in a state of equilibrium from the very beginning, in which both the questions of “wherefrom?” and “along what standards?” to start reasoning as well as those of “where to?” and “arriving at what result?” to channel reasoning are of complementary and equal importance.[37] After all, reasoning started from somewhere has to be channelled in a considered and continuously re-considered perspective.

In fact, the consciousness of the genuine purport of legal technique in law may help us to achieve that such a continuous meditation, pondering and balancing on and amongst various aspects, values and interests with the subordination of all kinds of institutional operation (and their inherent strive for alienation) to the service of the cause of the person, his family and nation as a community home will be increasingly realised in everyday practice.