Special Workshop Abstract

That what is identifiable of law when no implementation or judicial actualisation is priorly made is a dynamei at the most, that can exclusively become anything more through an instrumental operation by legal technique. Accordingly, law is made up of (1) a homogenised formal concentrate (2) operated by—being referred to—some practical action, the result of which will posteriorly be presented to the public as law converted into reality.

One may conclude therefrom that all that can be rationally and logically justified is mostly also made available in the law. For in cases when socially weighty considerations prevail, society is in the position to mobilise the means of rational justification at an adequately high level of logical standards so that the necessary and feasible effect can be reached.

The formal logical claim for norms being made deduceable from norms is not a readily given availability but a normative requirement, setting down the internal rule of legal games. However, games can only be played in given situations, micro- and macro-sociological as well, by identifying meanings within which also the judge takes part with his entire personality. Consequently, subtle shifts of emphasis in the definition of meaning, perhaps indiscernible in themselves, may add up to turns of direction in the long run of the process. Therefrom it seems as if the human wish for homogenisation and unambiguity went hand in hand with both the incessantly renewed attempts at reaching this in practice and their necessary stumbling in new heterogeneities and ambiguities, generating a continuous tension between a strain in theory and attempts at finally resolving this in practice. It seems as if hyperbolic curves were indeed at stake: when fighting for definite aims, we also necessarily move somewhat away from them with detours made.

The sphere of action of the judge is certainly limited, and the means by what and the ways how it is limited are also ambivalent. For the only path available for us to proceed on is to build artificial human constructs of mediation and filter them through a homogenising medium by applying its rules to the former. However, when they are made use of, we cannot entirely separate these constructions from their necessarily heterogeneous environments and, therefore, in each moment of their operation a definition by real situations of life will also be inevitably present.