In his study, ‘How the Law Thinks’ (1989), Gunther Teubner analyses several epistemological approaches applicable to law, including the theories of Habermas, Foucault and Luhmann. Writing about an “epistemic trap”, he also discusses the conflict between the autonomous reality of law and the reality of other social subsystems, including science, politics, the media, etc. In the footsteps of Teubner, and on the basis of Luhmann’s Autopoesis Theory (1984), we posit law as a system, and we examine how this system reacts to new challenges, new phenomena of social, economic or scientific development. We are principally interested in the law’s predictive, normative operation and power. We take the two types of adaptation from Piaget’s cognitive theory (1945): accommodation and assimilation to describe how legal doctrine as a system can react to a new phenomenon emerging in the fields of science, society, economics, etc. The doctrine of private law can, for example, react to the advent of dematerialized securities in two ways: either by assimilating them into a pre-existing category (that of paper-based securities) or by changing, accommodating the system itself, creating new categories and new rules regulating the new issue. This happens in all legal fields. The question of our research is how this change in law can be recognized, described and classified, what solutions are born in the different fields of law, “how the law resists, adapts and learns”. Such an examination is not new in legal theory, but the new waves of responsiveness examinations in concrete legal matters as a strong trend in the international literature open up new approaches to understanding how the law preserves its function in society by retaining its autonomous doctrinal stability or by changing. The analysis of the reactivity and responsiveness of the legal system is a fairly new and increasingly widespread approach in legal research. It does not, however, have much domestic influence so far. It is this gap that our research is designed to fill in by the comprehensive examination of the Hungarian legal system.
Hypothesis, Research Questions and Goals
The proposition of the research is that the role of law in influencing society largely depends on its reactivity, i.e. the ways in which it recognizes problems (changes in social, economic conditions, new demands and crises, etc.) and the manner and speed with which it reacts. By identifying the practices in the legal reactions to the non-legal challenges, we can answer a fundamental question: how does the law adapt, resist and learn? By further examining in depth the selected most relevant legal answers (legislation, regulation, judicial and administrative decisions), we expect to understand the overall responsiveness of the Hungarian legal system and its specificities.
We do not aim to explore the social, political or economic challenges within this legal research, but we take them as givens identified by other social sciences in order to use them as stable reference points (e.g. Kornai, Andor, Ágh). We plan to buy data about the legal environment of these challenges from commercially available databases in order to map the legislative and regulative situation between 2010 and 2018, with special regard to the changes in law. PhD candidates will assist in reviewing the obtained data and in categorizing it according to relevance to the types of external challenge formerly identified in the course of the social sciences literature review. The database we prepare (challenges and the responding legal environment) will be organised by three colleagues of law and political science having significant experience in quantitative research. Statisticians will also help this work in order to prepare a database that is informative for the experts and for the wider audience as well. The entire research team will be divided into 8 smaller teams at this stage of the research. The teams will work simultaneously, independently but following previously set guidelines. Smaller teams working in their fields of expertise will evaluate the received results about the legal environment of the social or economic challenge. In sum, the first research question (the first year of the research) is the following: what are the most important non-legal challenges between 2010 and 2018 and what is the legal environment of these challenges (change or no change)?
The expert teams of three to four researchers will further monitor the laws and regulative acts and create a subset of the most relevant changes or the most significant failures to change observable in the given legal field between 2010 and 2018. This selection will be controlled by interviews with the representatives of the 20 territorial courts of Hungary or by other legal practitioners, such as administrative bodies. The interview will focus on the identification of the most important and the most problematic legislative and regulative answers to the external challenges. Once the list of cases (the most relevant efficiencies and deficiencies) is final, the selected items will be analysed, using a combination of legal methods (Menyhárd-Jakab) e.g. analytical-doctrinal (accommodation-assimilation), comparative, historic methods as well as innovative approaches, such as the economic analysis of law. The in-depth analysis of the selected cases will extend from the legislative and regulative to the judicial and administrative fields. The second research question therefore is the following: what are the most relevant legal responses in Hungary between 2010 and 2018 to the non-legal challenges, and how does the law adopt, resist and learn in these situations in the different legal fields (second year)?
We have hypothesized that a challenge is a new, suboptimal situation, where, using normative tools, we can reach an equilibrium closer to the optimum. Law will perceive and process the situation by assimilation or accommodation. We have examined so far how the law adapts, resists and learns. In the last phase of the research the simultaneously working research teams will define the responsiveness of the law in their fields of expertise using the properly set analytical framework. The last step of the reserach is the systematic overview and the organisation of the findings of the smaller research teams. The last research question is whether the Hungarian legal system between 2010 and 2018 in the different legal fields and in general was responsive to the social, economic, political, technological (non-legal) challenges (third year).
HAS CSS ILS realised an extended research project analysing the state of the Hungarian legal system in 2015-2016. The results of the research were published in Jakab András-Gajduschek György: A magyar jogrendszer állapota 2015. The Institute wishes to continue this scholarly tradition and after the extensive status-monitoring already carried out examine how and with what success rates the Hungarian legal system has reacted to the ceaselessly emerging or regenerated social and economic demands or other non-legal challenges. To what extent can it renew or preserve itself, resist or adapt to external expectations (responsiveness)? How does it endeavour to preserve its normative function? If the previous survey conducted by the Institute can be described as the static description of a situation, the new one aims at examining the dynamics and legal specificities of change. The research will contribute to the scholarly and public debate on the functioning of the Hungarian legal system.
We expect a general description of one of the most important factors of the functioning of the legal system: its ability to respond to challenges and demands.
- We will define the systematic and legal branch specific ways the law adapts, resists and learns (accommodation or assimilation and its ways) and discover the strengths and weaknesses of its reactivity (responsiveness).
- This could become the foundation of future strategic propositions towards the development of the legal system as well as its main segments.
- We will publish separate articles in scientific journals and a volume (or volumes) of studies on the findings of the project in Hungarian. We also plan to publish information booklets in print and open information (e.g. the database-based information) on the website of the Institute for Legal Studies related to the project. The open access journals of the HAS Centre for Social Sciences ILS (Állam –és Jogtudomány and MTA Law Working Papers) will also be used for the communication of the results.
- We will publish internationally as well on the results of Hungarian responsiveness-research. The papers on the results of the research will be published not only in well acknowledged scientific journals but also in an edited monograph in English. We plan to provide a high quality manuscript reviewed by a native speaker in order to sell our product to a most acknowledged international publisher such as Springer or Routledge.
- We will disseminate, prove and improve the research idea and its results at international conferences throughout the research period.
The results of the research will finally explain the factors that can make legal-political reforms successful in the present Hungarian legal system. The research identifies the systematic problems of the legal system and the shortcomings of its ability to respond. Understanding these is essential to the successful realisation of reforms in public policy and regulatory policy, as well as the successful development of institutions.
Principal investigator: Fruzsina Gárdos-Orosz
István Ambrus (ELTE ÁJK)
Attila Menyhárd (ELTE ÁJK)
Ákos Szalai (PPKE JÁK)