Goals and Means in Law, or Janus-Faced Abstract Rights

Abstract

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 aware of the significance and long-term impact of this fact and also of the reifying influence it may presumably 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 that, in result of its application, law can only a p p e a r c o n t e x t u a l i s e d i n o n e o r a n o t h e r s e t t i n g , b y t h e u s e o f g i v e n l e g a l t e c h n i q u e s . 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, recourse or not to analogia, 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 casual (precedental) decision or on finding a formula (writ) outlining in what and how to proceed. But the answer to the question of what way they act and how they 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 any longer to provide guidance.
Therefore, in 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 which 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. By such necessary mediators being wedged in the process, the reified 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, as the case may be, as well as his predecessors’ heritage and his own talent.
For this very reason, our theoretical interest in and responsibility for the work 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 “law in action”,2 law cannot be considered otherwise than a process. And taken as a p r o c e s s , law works in function of its environment and can only be assessed through its c o n d i t i o n i n g a n d c o n t e x t u a l i s i n g c u l t u r e.