NATURAL LAW TRADITION IN HUNGARY
FROM THE END OF THE MIDDLE AGES TO 19TH CENTURY
di József Szabadfalvi*
University of Debrecen


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Abstract

The present contribution proposes a concise overview of the legal thinking on natural law in Hungary, beginning with Werbőczy, in the early sixteenth century, and ending with Csarada, in the early twentieth. This history traces the way in which Hungarian thinkers received and elaborated upon first Greek, Roman, and scholastic thought, and later that of Grotius, Wolff and Kant. Prominent among these thinkers are figures such as Martini and Csatskó. A crucial event in this history was the birth of universities of law, which catalyzed the development of natural law, which in turn had a strong impact on Hungarian law.

 

 

When trying to find the earliest documents in Hungarian legal philosophy, we must trace back to the end of the Middle Ages and the early new age. [1] A proof of natural law doctrine in the Middle Ages is Tripartium (1517) by István Werbőczy (1458–1541), comprising „the law of the country”, which describes in its prologue the concepts of justice, law and its divisions as well as the different types of statutes in a theoretical way. [2] That book was issued in more than five dozen publications including abridged and popular ones; however, there is still very little known about the origins of the legal knowledge of the author, who created the most important work for determining Hungarian legal attitude and legal culture up to the mid-19th century. The only fact that can be proven is that he spent one semester at the University of Krakow in the last decade of the 15th century and he acquired his language command of Latin, Greek and German in church schools. No document has emerged describing his Western-European (Italian) study trip. His philosophical and theological attitude is basically characterized by the adoption of the scholastic natural law discipline of the Middle Ages originating from Greek-Roman traditions; nevertheless, the ideas elaborated in his main opus do not constitute a single, coherent natural law doctrine.

Directio methodica, [3] published a century later (in 1619) by János Kitonich (1561–1619), was a collection of contemporary criminal proceedings. Similarly to Werbőczy, this collection drew on Roman law sources and cited works by Cicero, Gellius, Ovidius, Livius and Varro. In that age it was not without precedent that authors of Roman or even Justinian law were cited as sources in adjudicating legal disputes.
An important institutional transformation occurred in the history of Hungarian legal philosophical thinking with the establishment of the University of Nagyszombat (Trnava) with its faculties of theology and arts in 1635, and the addition of a faculty of law (facultas juridica) in 1667. While earlier attempts to establish universities had not influenced legal philosophy in any way, education in the first legal institution of higher education had a strong influence on the further progress in legal thinking. Practical aspects were emphasized when the faculty and its structure of instruction were launched. The founders did not follow either the Western-European or even the Austrian example; rather, their primary aim was to meet the practical needs of the Hungarian world of law. Two of the four professors of the faculty lectured in „national” law (jus patrium), while the other two professors held lectures in Canon law and Roman law. [4] In Hungarian higher legal education the traditions of theoretical education as part of Roman law and practice-oriented had been combined before the reforms of Enlightened absolutism emerged. The teaching of natural law doctrines mostly depended on the professors’ free will. Consequently, it was merely by chance that generations of lawyers were not provided with legal philosophical knowledge.

A good example of interpreting natural law doctrines was a work published in 1640 by György Illyésházy (1625–1689), [5] a three-volume work discussing natural law by Márton Szentiványi (1633–1705), [6] an essay on natural law published in 1694 by András Lehotay (?–1734). [7] Some time later, however, Lehotay’s former colleague László István Kregár (?–?) described that era in his own lectures in natural law, saying that it is „a dictate of reason originating from God which orders everything that is good from inwards and prohibits everything that is evil.” [8] All this reflects the decisive feature of scholastic natural law thought.
The compulsory and indisputable cornerstone for those times, considering its theoretical basis, was the doctrine elaborated in Hugo Grotius’s (1583–1645) work De jure belli ac pacis (1625). Legal philosophy as an independent discipline was established through a legal concept, which was on its way to becoming free of Christian theology, and which originated natural law doctrines from human nature. The doctrines of Grotius became fruitful in the contemporary German philosophy of law from the second half of the 17th century. Among the distinguished figures of the rationalistic explanation of natural law were Samuel Pufendorf (1632–1694), Christian Thomasius (1655–1728), and Christian Wolff (1679–1754), considered the most reputable follower of the philosophical and legal concepts of Leibnitz, all of whom deserve mention for having exerted the greatest influence on the evolution of Hungarian legal philosophy. As jurists and university professors, they established and practised natural law as an independent legal discipline separate from philosophy and theology.
Among these eminent philosophers, Wolff’s oeuvre must be emphasized since he, as the leading theoretician of Enlightened Absolutism of the Prussian Frederick the Great, considered all kinds of radical attempts to be faulty. In the contemporary system of Enlightened Absolutism these concepts were regarded as part of the official legal ideology. Wolff’s natural law doctrine had a profound effect on Hungarian legal philosophy for over one and a half centuries. These popular and respected thoughts have become known as the Leibnitz-Wolff school of natural law. [9] The most prominent figure of this school, from a Hungarian point of view, was Karl Anton Martini (1726–1800), [10] who in 1753, being in Maria Theresa’s confidence, was appointed professor of the then established department of natural law in Vienna, the centre of the Habsburg Empire. In his works he provided an excellent compilation through summarizing the theses of his predecessors (Pufendorf, Wolff). In the second half of the 18th century he was considered without a doubt as one of the most talented jurists of Austria. Hungary, being part of the empire, was not independent from Austria in terms of its economy, politics, or culture and science. Consequently, the first attempts to create Hungarian theoretical legal thought were connected to the Wolff-Martini doctrines.

Further published contemporary works in legal philosophy are regarded as simple explanations of the doctrines of Martini endowed with „Aristotelian respect”. Major works were written by Ferenc Roys (1713–1768), [11] György Zsigmond Lakits (1739–1814), [12] and Ádám Brezanóczy (1751–1832). [13] It is worth mentioning that works opposing the official legal ideology, regarded as being of radical attitude, were also published in the late 18th century. As examples opposed to Wolff-Martini’s concept, the books written by János Filó (1722–1786) [14] and János Adámi Nepomuk, [15] which include scholastic ethical discussions, are worth a mention.

Besides the early products of the national theoretical literature of law, the importance of the very first work in jurisprudence in the Hungarian language is to be emphasized. An extensive volume entitled Báró Martini természet törvényéről való állatásainak magyarázatja (An explanation to the arguments in the law of nature by Baron Martini) was nothing else but a translation published in 1792 of the second volume of Martini’s Positiones de lege naturali in German, produced by Sámuel Dienes, [16] who had been a student of Heidelberg University and was then working in the chancellery of the royal court in Transylvania. The name of János Újfalusy Nepomuk (1790–1849), who has become a well-known philosopher as an interpreter of Martini’s doctrines, must also be mentioned here. His book published under the title A természeti hármas törvény (The triple law of nature) [17] is considered the last one among the works that interpreted Martini’s view without any criticism in the Hungarian legal professional literature. The real importance of this work lies in the fact that, besides the overwhelming Latin professional literature, it opened the opportunity to discuss natural law in the Hungarian language and attempted to introduce the discipline into the Hungarian legal education. [18]
For the monarchs of Enlightened absolutism the doctrines of state, power and law created by Martini were quite acceptable in all respects, and this is why it was not by chance that natural law doctrines were included as compulsory disciplines in the curricula of legal faculties. These legal philosophical dogmas allowed the training of loyal state officers, in addition to supporting further extension of the monarchs’ powers. Upon these considerations Maria Therese established – on the heel of the examples of Freiburg (1716) and Prague (1748) – a faculty at the University of Vienna in 1753, and also had education in natural law for first-year law students launched in Nagyszombat (Trnava). In the first Hungarian faculty of law the professor of Roman law was obliged to teach this subject, and given a salary nearly double that of of his colleagues. The first lecturer meeting the requirements was Mihály Szedmáky in 1761. [19]

An independent department of natural law in Nagyszombat had not been established until 1770. According to the regulations of the council of the governor-general, „the institutions of Vienna University shall serve as the directive rule in every respect”, which means that the institution in Vienna was to be used as a model concerning both the course material and the topics for discussion. The regulation clearly defined which of the works written by Martini had to be taught and it also emphasized the importance of Grotius’s major work.

The first professor of the department of natural law was Johann Heinrich Van der Hayden from the Netherlands, who had graduated from the University of Vienna. He was followed by József Fülöp Stuhr (?–?) for a short period of time. From 1775 natural law was taught by Antal Demién (1744–1833) [20] for a quarter of a century. According to contemporary records, natural law education was not highly respected, and few students attended the course. It was not by chance that the first Ratio Educationis of 1777 ordered departments of natural law to be established in further five royal academies of law with the aim to change this situation. The monarch made a decision in the same year to transfer the seat of the university to the royal palace in Buda, which finally moved to Pest (Budapest). In the first half of the 19th century Mihály Hirsch (1750–1809) [21] and then for nearly two decades Pál Markovics (1758–1832) [22] were well-known professors of legal philosophy in university education. Their lectures in legal philosophy mainly advocated Martini’s doctrines. Nevertheless, the first representatives of the national discipline of philosophy of law gained distinction in adapting the general doctrine of natural law concepts to Hungarian circumstances. The explanation embracing the social contract between modern state and law, even through an interpretation by Martini, had the force of revelation in contemporary Hungary.

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