THE LAW AND ITS SIMULACRA: COMPETITION WITHIN AND OUTSIDE THE LAW TO DETERMINE WHAT LAW WILL PREVAIL
THE LAW AND ITS SIMULACRA: COMPETITION WITHIN AND OUTSIDE THE LAW TO DETERMINE WHAT LAW WILL PREVAIL

Summary/Abstract: What law will be at any time can be defined in rivalry amongst the law’s sub-complexes (as it gets positivized, enforced, and/or socially lived) or as it gets defined through a set of layers (of positive law, judicial practice, and/or legal doctrine). Once human rights claims, constitutional court jurisprudence or soft law enter the scene as law-generating force, the first picture theory proposes, dynamic by itself, will only show one of its components broken further, whilst the second one, as a static theoretical construction, is to have already a new layer wedged in on the top or elsewhere. Contemporary law being dissolved to a large degree, has in the meantime become open to intervention by pressure groups and non-governmental organizations, either domestic or foreign, in order to unduly shape local, national or international policies. This produces fluctuation in the process of law- generation, shocking perhaps at first sight but in itself it is just a repetition of what legal development has taken for millennia, with clashing innovative ideas and ideals, orientations and trends. For law is hardly more than specific problem solving in the humanity’s challenge-and-response paradigm. Accordingly, once priorities or services offered to the practice of human rights, constitutional adjudication or soft law turn to be a problem itself (as it does in Hungary), cure can only be searched for in either legal policy measures or the state machinery’s regulative intervention.

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