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THEORY OF LAW - LEGAL ETHNOGRAPHY OR THE THEORETICAL FRUITS OF INQUIRIES INTO LEGALLY RELEVANT FOLKWAYS

100%
Varga C.
Tarsadalomkutatas (Social Science Research)
|
2008
|
vol. 25
|
issue 3
275-298
EN
'Rechtliche Volkskunde' is distinguished from Legal Anthropology, and the latter from both Legal Ethnology and Legal Pluralism, as well as from the research on Aboriginal Law, claiming the first three to be law-related parts of non-legal disciplines, in contrast to 'Ethnologischer Jurisprudenz' and Anthropology of Law, taken as directions within the field of general jurisprudence itself. For the time being, neither the first has projected own theories nor Socio-ethnography has interfered with legal theorising, nurturing or challenging it. Since the realisation of Ehrlich and Weber on that laws may prevail independently of the states' 'Westphalian duo', a number of attempts at both extending and narrowing the law's usual covering has been tested. Considering the pendule movement between monism and pluralism in a historical perspective, renaming through reterming what is at stake as the object of research should not be a primary issue. As formulated by the author a quarter of a century ago 'Law is (1) a global phenomenon embracing society as a whole, (2) able to settle conflicts of interests that emerge in social practice as fundamental, while (3) prevailing as the supreme controlling factor in society'.
2

Reception of legal patterns in a globalising age

100%
Varga C.
Tarsadalomkutatas (Social Science Research)
|
2006
|
vol. 24
|
issue 1
33-60
EN
Reception, octroi, legal export, transfer or borrowing or transplant, foreign legal aid and assistance, as well as, taken as disciplines, the American movements of Law and Development and Modernisation through the Law as well as the French 'droit du développement' are all to conceptualise different characteristics from differing aspects. Their critical overview and analysis (1. Terms) allows theoretical foundations to be elaborated and the ontology of giving legal patterns to be drawn up in outlines (2. Technicality). The most significant feature in all that is the transcendence of small-minded positivistic attitude that identifies law as a rule by positivation in law as complemented by the law's interpretative medium and by the entire legal culture behind the enterprise of law, is taken as one conglomerate in a totality of approach. This perceives the past half century's efforts at generating such legal effects as a process with obvious successes but also accompanied by considerable failures (3. Contrasts, Criticisms and Alternatives). With regard to the obstinate self-assertion of interests in the background, the question itself is gradually elevated to social policy heights, with the nature of globalisation in its focus. After all, do we act narcissistically, inflicting our traditions on others, or can we support any foreign people selflessly, helping them to find their own way to optimum improvements? Is our interest driven by mere selfish hunger for more power, or by helpful intention? Eventually, which pattern do we prefer from among the stunt of will transference by a circus showman or a gardener's humility attending all ground at all times? True, it may require sacrifices to withstand the temptation by the former, yet only a way leading back to the lessons drawn from experience can be successful in the long run. For ultimately the destiny of modernising reform is up to the selective force of the targeted system, moreover, the latter's environment may determine the law's eventual fate.
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