Introduction

György Lukács (Budapest, 1885–1971) had no genuine professional encounter with law, the fact notwithstanding that he received doctorate in scienciarum politicarum (1906) under the direction of jurisprudent Felix Somló at Kolozsvár (now Cluj-Napoca, Romania), and while at Heidelberg during the Great War, he befriended Max Weber, Gustav Radbruch, and Hans Kelsen alike (Varga 1981). Being an aesthetician, literary theorist, and social philosopher, legal topics could only serve mostly as substitute subjects to him, as structural exemplifications of abstract philosophical theses.

History and Class Consciousness (1923)

The first major magisterial work of Lukács in Marxism was the philosophy of revolutionary consciousness. Concluding from the study of history in the revolutionary bouleversement coming in the aftermath of the Great War, he saw the rejection of innate respect for anything established as the number one precondition of whatever intent at revolutionarization. For all concepts of order have to be rejected (with a missionary zeal professed as a quasi “Marxist theology,” as Béla Kun remarked) for that the prevalent institutional framework can be overthrown. Surpassing the dualism of legality and morality, he could subordinate means to ends. Thereby the conclusion could be reached that nothing but societal acceptance gives violence chance to win, so, in general, not even respect for law can be more than the ephemeral function of expediency (“The Changing Function of Historical Materialism” [1919] in Lukács 1923). Before long he arrived at revealing what he had meant by class consciousness:

Where the total, communist, fearlessness with regard to the state and the law is present, the law and its calculable consequences are of no greater (if also of no smaller) importance than any other external fact of life with which it is necessary to reckon when deciding upon any definite course of action. The risk of breaking the law should not be regarded any differently than the risk of missing a train connection when on an important journey. (“Legality and Illegality” [1920] in Lukács 1923, 263)

This is to say that only an anti-institutional turn, as well as repudiation and contempt of what has ever been established, can help a revolutionary cause.

In a vision he partly learned from Weber, the outside world is distorted, because rationalization has reified its working. As he explains by reference to the law (“Reification and the Consciousness of the Proletariat” [1923] in Lukács 1922), the breaking of originally unitary complexes into their constituent elements brings about specialization with processes losing their natural-organic unity and becoming calculatively produced syntheses of rationalized subsystems. As a consequence, man, no longer appearing to be the proper vehicle of such processes, gets reduced to become a mere part incorporated into a mechanical system functioning independently of him, his only achievement being that he merely fits into the movement of a system.

Moreover, this whole complex tends to become almost irrational and alienating, as it will necessarily “diverge qualitatively and in principle from the laws regulating the parts” (Lukács 1923, 102–103). For, as Georg Jellinek, Kelsen, and especially Emil Lask already taught, this is a (both historically and technically) necessary distorting effect of material conditions abstracted into legal regulation. From this point on, he declares now that it is such a reified functioning and socially alienating medium that dominates the social and legal terrain, in which “of the tenets of natural law the only one to survive is the idea of the connection without gaps of the formal system of law” (Lukács 1923, 108Footnote 1).

Especially this period of Lukács’ oeuvre frequently inspired, and remains as most thoroughly commented by, representatives of American and partly Western European social and legal thinkers who entered debates on reification/alienation, rationality, or legality/illegality particularly, as part of interwar Marxism thematizing on topics that Weber initiated and cultivated originally.

Works in the Meantime

In addition to Lukács’ greeting Stalin’s draft constitution in a Soviet weekly in 1936, only two opuses in diverging directions had turned to exemplification upon the pattern of law until the final, ontological synthesis was formulated.

The first is a Cold War annihilating criticism of philosophies held responsible for all those intellectual driving forces, permeated by irrationality, which lead to the Second World War, The Destruction of Reason (Lukács 1954), in which Lukács discusses, by touching upon legal problematics, one, economic and state management and the role law plays in them, drawn in analogy through their rationalization, and two, normality as a condition of legal validity opposed to the state of emergency, in order to try (remaining doubtful whether successfully or not) proving irrationalism in the stand of Carl Schmitt and his paper, justificatory of the Hitlerite liquidation of the S.A. in 1934 (Varga 1985, 62–66; 2005).

The second is already done on his path toward the first great objective Lukács set, notably the one to outline The Specificity of the Aesthetic (Lukács 1963) in an interim book-size study on Particularity as an Aesthetic Category (Lukács 1957), in which – touching upon the legality/morality dilemma as well – based on Hegel’s lines in his Science of Logic, mainly the dialectics of sublation of generality/particularity in cognition, conceptualization, as well as artistic reflection are described.

From it an outstanding Hungarian Marxist jurisprudent drew the most. After arguing counter the never held idea that law itself could have an own ontology, in paper and book fora with qualifying titles given as given by Lukács to aesthetics, he contextualized law, defining it as reflection of reality, amidst the categories of individual/particular/general, assigning the medium level of conceptualization to it. Thereby he also marked out the place of its theoretical reconstruction within the realm of epistemology by and large, starting searches for the law’s parallels and analogies with “mirroring” in cognition and other forms of human activity (Peschka 1985, 1989).

On the Ontology of Social Being (1964–1971)

The last magisterial work by Lukács, published posthumously, intended just to lay foundations to his Ethics which he dreamed about but never accomplished.

According to its basic tenet:

the social being is a complex of complexes even at its most rudimentary level; a continuous interaction exists between the part-complexes as well as between the total complex and its parts. The reproduction process of the prevailing total complex develops from this, and in such a manner that the part-complexes also reproduce themselves with (only relative) autonomy, but the overriding element in this many-sided system of interactions derives from the reproduction of the whole at any time in all of these processes. (Lukács 1976, 140)

In the womb of it all, social practice is realized by way of mediations [Vermittlung] even in the elementary acts of labor, and this assumes increasingly complex forms in the course of development in every sphere of social reproduction. In such a sense, mediation is the whole process-like medium in which the interaction of complexes takes place. And, within it, socialization [Vergesellschaftlichung] is the increasing domination of purely social determinations in social processes, standing for an irreversibly and unbreakably progressing overall process, capable of erecting, through historical accumulations, networks that are complex in themselves. Socialization stands here for the growing weight by which human artifacts with rationalizing force are built on natural processes, considered in this context – in contrast to Lukács in 1923 – as the sign of an irreversible march of progress.

In mediations taking place between the social total complex and its partial complexes, language and law are the two basic agents of mediation – the one for the very possibility of social interaction and the other for its frameworking regulation – that is, the ones having the sole function to mediate among whatever complexes. This is to mean that language and law are not to assert but to mediate among values and interests which themselves are represented by those complexes to be mediated among themselves. Accordingly, what language and law may still feature up as own values and interests is instrumental in character at the most, intended either to facilitate mediation as such or to enhance its cultural level and demanding character.Footnote 2

As known, it is the ontological perspective that is primordial vis-à-vis the relevance of any purely epistemological approach. Accordingly, everything and anything are an ontic part of the social being that actually exerts an influence in societal processes. In the world of humans, queries into the gist of social being are ontological ones from the very beginning, independently of whether of a mental, institutional, or actioning character, epistemology being closed in cognitive reconstructions, centered around veracity issues (Varga 1999). This means that particularly ideology as such is part of the humans’ societal existence, not to be regarded as simply an either true or false form of consciousness (in an epistemological perspective) but as one of the organic and necessary components of the ontology of social existence. To be short: the way we think in is part of what we truly are. Therefore, our working consciousness is also co-actor in our actions. Accordingly, so-called juristic worldview [juristische Weltanschauung/Weltbild], taken as the deontology of the legal profession, is not some accidental and/or external complementation to law, but – be it, for instance, the case of European continental normativism or the Anglo-Saxon pragmatic casualism of the case-law method (not to extend exemplification to the world’s past and present further legal traditions as well) – it is one of the original components of what can be truly termed as the law’s societal existence.

In order to guarantee unequivocality by excluding corruptive questionability, the law formulates the instrumental behavior defined by the legislator as the target itself to be reached and sanctioned. This is by which it stipulates the Tatsache – the aggregate of those facts that may constitute a case in law – so that average social attitudes can be foreplanned and also effectively made to be reached through prescribing/proscribing (i.e., sanctioning in a positive/negative manner) well-selected instrumental behaviors.

Therefore in relationship to reality, from the outset, law has a deeply practical and teleological determination. Paradoxically speaking, it is an image that does not portray what it reflects. Its inherent incongruence, as stated by Karl Marx to Ferdinand Lassalle in a letter of July 22, 1861 (Marx and Engels 1964, 614), is not an epistemological distortion but an ontic sine qua non. And the incongruence of legal reflection grows at each and every higher level of the law’s own system, only characterizable as an “abstractly-conceptually homogenizing manipulation” of reality (Lukács 1976, 217–218). The basic heterogeneity of cognition and teleological projection (like the one of epistemology and ontology) in law is best exemplified by the role conceptuality and logic may play in the latter. For:

[l]ogic […] remains here the mere instrument of conceptual forming: the contents of what, for instance, has to be regarded as identical or non-identical, is not determined by social objectivity in itself, but by how the ruling class (or classes, class compromises) are interested in the regulation and resolution of definite conflicts in a certain manner. In the meantime it can easily happen that elements which belong to each other socially are separated and the heterogeneous ones are reduced to a common denominator. Whether and when this happens and whether and when uniting or separating them is correct are not decided by logical criteria (even though everything appears in a logical form), but by the concrete needs of some concrete socio-historical situation (Lukács 1976, 484) or by the “peculiar socio-historical dialectics” involved. (Lukács 1976, 189)

Otherwise expressed, “an epistemological objective identity or convergence can in no way provide the decisive motive for choice or rejection; this motive consists in an actual applicability in concrete present circumstances, from the standpoint of a resultant in the struggle between concrete social interests” (Lukács 1978, 128). This is to say that the factual and normative components referred to in any legal process are mere means or, more exactly, phenomenal forms of actual working, for “the logical subsumption is based on this only as a phenomenal form” (Lukács 1976, 220).

There is a specific duality in the operation of law from the perspective of the social total complex, because, on the one hand, its autonomy as a part complex one is asserted, while, on the other, there is a pressing need, too, for that this autonomy can and will in fact run by and large tendentially in parallel with the total complex’s total move.

As to the first side:

the more law generally became the normal and prosaic regulator of everyday life, the more the pathos it had acquired in the initial period disappears and the more the manipulatory elements of positivism gain strength in it. It becomes a sphere of social life where the consequences of actions, the changes of success and the risks of losses are calculated in the same way as in the economic world itself. Of course, this happens with the difference that, firstly, the point in questions is mostly a (relatively independent) function of economic activity, where the likely outcome of legally permitted activity and, in case of conflict, lawsuit, are a subject of specific calculation within the main economic target; and, secondly, specialists are needed over and beyond the economic calculation, too, to estimate these additional prospects as exactly as possible. (Lukács 1976, 215)

As to the other side, what is the most sensitive moment of the law’s whole life, seen from its objectivation in books to its enforcement in action, is called “concretization of rules” by Carl Schmitt in 1912 (cf. Castrucci 2017) and/or the “two stages of the process by which law is produced” by Kelsen in 1925 (cf. Varga 1994), which was sharply criticized by Lukács earlier (Lukács 1954 [German ed. 1962, 569]). This turn now, it is Lukács himself who will qualify it manipulation simply, moreover, manipulation in a positive sense, as an unavoidable corollary of any such practice. For, as claimed by him:

the functioning of positive law is based on this method: the mass of contradictions has to be manipulated in such a way that not only a uniform system should develop from it, but one which is able to regulate the contradictory social event practically and optimally and which always moves flexibly along the antinomic poles (for instance, naked force and conviction bordering on the ethical sphere), in order to realize and influence the decisions of social practice (which are currently optimal for society) in the course of shifts of balance that constantly occur within slowly or rapidly changing class rule. Clearly, a wholly specific manipulative technique is necessary for this, and it explains the fact that this complex can reproduce itself only if society always reproduces the “specialists” needed for this purpose (from judges and lawyers to policemen and hangmen). (Lukács 1976, 225–226)

All this induces new contradictions that Lukács sees as ones characterizing the very nature of law. For “The new fetishization lies in the circumstances that the law […] is treated as a solid, coherent, ‘logically’ unambiguously defined field, and not only in practice, as a subject of pure manipulation, but also theoretically as an immanently closed, in itself closed complex correctly treatable only with juristic ‘logic’.” (Lukács 1976, 215–216).

Accordingly, there is a must to have a particular case of double talk inherent in law, necessary if an action pertaining to social heterogeneity is to be performed within, as complying with all the added requirements of a given species of social homogeneity. In such a scheme, actual decision-making can only be modeled by a logic of problem-solving, with relatively open chances and within a relatively open referential frame, upon which the law’s proper logic of justification can only be built as added to and projected onto the former, phase to phase and only posteriorly, as a kind of feedback in test of controlling the genuine fulfillment within the law’s own system of fulfillment [Verfüllungssystem] (Varga 1992).

Once there is “individual norm” as discretionarily concretized from a “general norm” (Kelsen) where “manipulation” (Lukács) adds “a filling-in of a frame” (Kelsen), provided by the law in books to the law in action, the law’s practical operation will necessarily be a kind of reconventionalization, sublating [aufheben] its own antecedents in endless processes. This equals to saying that any such operation effects in law (in)novations as well, according – as adapted – to timely changing needs. As Lukács held, “Naturally, at certain primitive stages the deviation might be quite minimal, but it is quite certain that the whole of human development depends on such minimal displacements” (Holz et al. 1967, 18).

It is the judicial process as particular reality-(re)construction from the analysis of which one has to arrive – as Benseler (1987) did in fact – at the ontologizing reformulation of autopoietic theory. As concluded therefrom, that what is alleged to qualify as following (while conforming to) formalized social patterns is reproduction and production at the same time, that is, an individual combination of preservation and (in)novation – up to the point when its standing practice will be recognized as a pattern following pattern, by the given social and/or professional environment. Or, to claim (according to the English-American habit) that a given jurisprudence is “within the canon” is hardly else than the timely outcome of self-reconventionalizing practice itself.

All in all, in such a picture a definite Janus-facedness, that is, the practice of double talk, will become a necessary corollary of lawyers’ activity, for, what they do is, according to Lukács, firstly, to transfigure real conflicts of interests into conflicts within the law and then, secondly, to refine even these into apparent or quasi-conflicts, that is, into instances of what application of law truly is – while what they show is nothing but to operate simply with facts and norms within the strict control of logic. Otherwise speaking, what they do in actual practice is manipulation with both the selection and interpretation of both so-called relevant facts and pertinent norms, so that the judicial decision they reach can – as much as possible – eventually imply a responsible and also socially justifiable decision under the facade of mere logics. Or, this is to mean that logic is hardly more than form of expression in this whole operation here and by far not a medium mastering the process in which a due decision can be reached.

Conclusion

Modern formal law is reified a construct, the operation of which is reified and reifying at the same time. It is to be noted, too, that the normativistic deontology of legal practitioners and legal theories alike are all founded upon disanthropomorphic schemes, able to exert disanthropomorphizing effects themselves. This is why the chance of alienation is at the very root of modern formal law (Varga 2013).

Reified law produces just the ideology that best suits the law’s operation according to its own postulates, normative and ideological at the same time. One could also add that the reified operation of reified structures needs and simultaneously produces, too, reified consciousness. Well, the juristic worldview, taken as the deontology of the legal profession, can indeed be seen as the adequate reflection of a system turned upside-down. Accordingly, an act of unmasking its sheerly ideological character would both precondition and result in unmasking the law’s aspirations to acquire autonomy.

The impact of Georg Lukács’ philosophizing is internationally standing indeed. The share of legal philosophizing in it is, in contrast, mostly reduced to worldwide political philosophizing and to legal thought especially in Hungary and Brazil (cf., e.g., Sartori 2013).

Cross-References