ACTA JURIDICA - A MTA Jogtudományi Közleményei Tom. 29 (1987)

1987 / 3-4. sz. - KULCSÁR KÁLMÁN: Position of lawyers and their role in the last four decades of Hungary

Position of lawyers in Hungary 305 especially significant in East-Central-Europe and having just therefore influenced the shaping of the conditions of lawyers in the last four decades. The first factor of such kind is the dominance of the political system and within it of the central institutions in the Eastern periphery and semi-periphery and, following therefrom, the increased and in concrete cases unjustified use of law in the process of the solution of social problems. This dominance of the political system is after all the result of the backwardness of our region, as a consequence thereof, of the compulsion of the closing up or adaptation of the following of external patterns, on the one hand, and of the defense against the external pattern, on the other hand. This phenomenon has been enhanced by the historical shortage economy of our region connected with the delayed development becoming different as compared to the European centre and which appeared not infrequently as "relative shortage" due to setting ambitious social aims.1 What does follow therefrom? The particular phenomenon which—I underline— has been the concomitant of our history, especially from the early 19th century, namely the difference between the effective function of the law and the function attributed to the law. The development of the Hungarian society shares this particularity not only with the neighbouring countries but also with all so-called developing countries which, striving after the emergence from the traditional state, endeavour to transform their society through the process of modernization. A famous Indian jurist could therefore observe with sound foundation that the application of the law for the purpose of development, and the problems resulting therefrom indicate by themselves alone one of the aspects of the under-development.2 At any rate, the function and the social condition of the lawyers do not signify in this case the objective function of the law but the functions attributed to the law are reflected therein and bear also upon the disfunctional phenomena of the law. This shows itself concretely e.g. that in such societies the number of lawyers is high and becomes too pronounced in the construction of the intellectual professions, the assumption of social utilizability of the special knowledge of lawyers goes far beyond the professions related to the effective function of the law, etc. The second factor may be traced back in a sense to the same historical phenomenon, namely to the backwardness and to the compulsion of the shaping of society by means of reforms started from above. This phenomenon may be called a paternal policy the consequence of which is the will to regulate everything, namely by establishing a lot of obligations, formulated in such a way that the behaviour of citizens can be governed directly without any legal knowledge so that this regulation is not only unfoundedly liberal but also "free" of the special knowledge of jurists, of the legal rationality. This was noticed even by Max Weber having written of the Prussian 1 Cf. Kulcsár, К .: The role of law-marking in the modernization process, Acta Juridica 1—2/1983. 2 Baxi, U.: The Crisis of the Indian Legat System, Delhi, 1982. p. 33. 2* Acta Juridica Academiae Scientiarum Hungaricae. 29, 1987

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