The Logic and Ethics of Law

Philosophy of Law

Despite its clear millennial conflation with politics, law, including public law and the theory of power, as well as civil and criminal law, are prominent areas of the legal and political sciences, but for most of history law has played a merely servile role in consolidating the claims of power, so that few have had the opportunity to use law as a science, legal principles as equations, and legal language as a philological vocabulary. Fortunately for us, however, many people can discover in the past the elements that can help navigate the vastly expanded legal toolbox of today. The starting point for our study is Aristotle, and the fragments of pre-Socratian philosophy that could appear hereby.

We cannot underline enough the need for an axiomatic approach to law. As in religious writings, legal texts presumably always contain a conditional word "IF" (who, those, when, etc.), i.e. an axiom referring back to a basic situation which is changed by the event (fact). This character is, by the way, also prominent in the laws of Hammurabi (KMOSKO, M.) and in the interweaving of passages of the Old Testament (light refers to the existence of darkness and vice versa, in a philological sense). How can we examine this activity of creating social norms through scientific means and methods? Presumably, to examine it, we must also use sociological tools, since the scientist (and thus the jurist) operates on the boundaries of society, assailing the terrain of the known and the unknown (POKOL). In the philosophical explanation of jurisprudence, it is important to highlight the characteristic of legal systems that, despite their clear organicity, they are in a certain way interdependent, in the sense they cannot contradict each other.

The evolution of law is thus the debated, sometimes bloody struggle of generations to return to or switch to newer (or rather older, anarchic) legal institutions. The more legal layers (or strata) the reform would break up, the greater is the social impact needed to replace the legal norm. Layers do not only appear at the level of the classical hierarchy of legal sources, but also include many other dimensions. Taking Pokol's theory of layers as a starting point, and complementing it with constructivist theories (WENDT, A. 2015), it is clear that at the basis and the apex of law is the power that constitutes us all equally (NURAY 2022). However, not always and not in the same way. This can also be noticed in the philological study of historical legal concepts, since restrictive layers and additions were added to the basic concepts at a time when it was no longer clear that law served the interests of society and needed some kind of explanation or relief. We can assume from Bibó's economic theories that behind major legal changes there may be economic interests, either negative (the people) or positive (big business). Here we can also speak of the law-shaping effect of disasters, the COVID 19 virus situation providing sufficient material for the study of the citizens' willingness to follow the norms and on the situation of global capital (HORTAY, 2024).

What could be the reason for our investigation, in which we are trying to touch the fundamental logic of law? Probably the sense of the need to change legal rules and basic concepts in response to technological developments. Our contemporary legal system is already struggling to keep pace with the political, economic and social changes that have emerged in recent decades in parallel with the socialisation of information. The danger of the law, as a stable framework, becoming aware of its limitations is that it carries with itself the potential for panic; that as some scientific or social systems (even in disguise) overstep the bounds of the law, creates a kind of deficit in the legal system. This may also be the case for artificial intelligence, as these products are many times beyond human conceptual capabilities and may therefore have a competitive advantage, especially in the field of law. Supposing that a human has to provide legal protection against a machine that has the full legal regulatory background and case law at its disposal when making its decision, while a human can only rely on its legal impression based on non-exact data. This is particularly important in the case of the Right to Life, which, if misinterpreted, gives rise to the misconstruction of the right to self-determination, whether by human or machine minds. This may result from the fact that the legal foundations of the Enlightenment and the French Revolution have neither been limited nor questioned since their birth. It may be worth filling this legal gap as soon as possible, since once certain subfields have expanded beyond the terrain of law, it may be much more difficult to bring the system back into proper balance through science.

What drives science forward is presumably originality, which Pokol also believes is one of the cornerstones of knowledge acquisition, since original knowledge is organically linked to its inventor. Nowadays, we have many disciplines, so science has not only become over-segmented, but there is also a lot of "noise" about original ideas, since a new dress can be a driving force for a large economy, while the idea of a new kind of battery is not necessarily preferred among the thousands. This can lead to a kind of washout, particularly in the field of law, where the phenomenon of juristocracy or juridocracy can be seen unfolding because of its interconnection with politics; the economic centres influence jurisprudence from two sides (the academic sphere and public office), but they do so by not following the infallible logic of science itself, but by shaping their decisions according to other, quantified interests. Within jurisprudence, constitutional law can be identified as a mediator of change, since, as a top-down hierarchy, it is from the higher levels that societal demands for the shaping of lower standards come. In Hungary, we have what is called a flexible constitution, which requires a two-thirds majority in Parliament to be changed. The 2011 constitution-making process could be of great significance for our nation because it made a break with the Soviet constitution by stripping down certain basic concepts and clarifying a number of legal institutions, thus helping legislators and law enforcers at lower levels. The need for a reference point for the Fundamental Law soon became apparent, since it was a basic instrument that could be used to determine the content of national sovereignty in the harmonisation of EU legal norms. The obligation to harmonise laws under the European treaties also appeared as a second channel for constitutional rights, which may in theory but cannot in practice contradict the provisions of the treaties. This multiple limiting effect clearly leads jurisprudence in the direction of minimising its misguided attempts, not daring to experiment with innovative solutions face to policies.

Once we know the vulnerabilities of the system, we can try to take advantage of them. Since law has a less abrupt development curve than other disciplines, and the aforementioned phenomenon of close stratification makes it possible to distinguish between the different layers of written (positive) law, it is easy to find legal solutions in the past that can be used by a much wider range of people, given the right historical and metaphysical knowledge. One only has to think of the Western reception of Roman law, whether in the field of contract law or criminal law, which latter is more deeply embedded in the fabric of society and has historical roots that go back much deeper than civil law. According to some voices in the sociology of law, there is a binary code at the level of science, as there is at the level of jurisprudence, based on the true/false dynamic, which is reflected in the parallelism of right and wrong on the side of law. However, we have already established in a previous work that this binary code is in fact quantum, so there is not only a true and a false answer, but also other neutral answers that are at least as important elements of the system. The science of criminal law has already worked out a way to resolve these contradictions and contradictions, since in determining guilt, criminal law looks at complicity, incitement, aiding and abetting, in addition to the negligent/intentional form, while in many cases reserving the possibility of mitigation for the judge, even beyond these means. Thus, presumably, if scientific or legal fact or activity could be segmented and documented in time and content, all social mechanisms and legal facts could be correctly assessed along the above criminal law tests, in addition to learning the true dynamics behind scientific processes which could then become malleable.

In dissecting the concept of law as a science, we cannot exclude the examination of the lawyer as a person, since in Hungary all lawyers are considered legal scholars, and they shape Hungarian law by their very existence and legal activity. Although the legal system of our country is based on written law, case law and customary law facilitate the application of law in many areas, since we can easily make a legal decision by looking at the legal regulations and trusting in the similarity of the previous case.? This dynamic also leads to a kind of juridical dominance, since interdependence between the different guilds is also reflected in the legal community (an extreme example of which is the Common Law system based solely on judiciary). However, it is important to point out that there are hardly any lawyers 'operating outside the system', since their livelihood is tied to an active legal career, in the course of which they are forced to adapt to the highly complex legal system organised from above, and thus one can only achieve decisions influencing positive law at the highest levels. This in turn requires a degree of embeddedness in the legal and political scene that perfectly marks the scope of the rule of law in Hungary and in the EU.?

Is it ethical to exclude the vast majority of society from the legal process in which consensus is reached on issues that are crucial to them? The legal and civil circles are completely separate, if only because of the use of technical terms. It could be said that law has never been democratic, but it has never been more democratic either, since current information technology allows us to easily absorb legal texts of unimaginable length, even in other languages, so that we can make decisions on the basis of the right information piece. As the human resources of Luxembourg's legal intelligentsia show, the interoperability between systems is extremely low. The legal practitioners, so to speak, shape their own system, which influences science, education and, to some extent, even politics. In this aspect, the intergenerational nature of law as a science is not in our interest, since those who lay down these legal foundations also ensure the self-serving, long-term survival of their interests. This raises the question of whether society knows its own interests at all. In a society that is over-moralised and over-politicised by the media and economically oriented, it is not certain that genuine principles and decisions representing natural interests will prevail. This is also true of the scientific sphere, which is permeated by economic interests and a kind of competition for perceived or real benefits which in many cases is stimulating but probably not always conducive to the rapid, effective development of science as a whole, or does not sufficiently limit it (one need only think of developments in AI), which in turn brings to the surface the Marxian idea that the value of productive means and products exceeds the absolute value of the human factor in economic and legal processes, not to mention academia and science.