ACTA JURIDICA - A MTA Jogtudományi Közleményei Tom. 21 (1979)
1979 / 1-2. sz. - SAJÓ A.: The observance of Socialist law
A. Sajó sense of the interrelation between theoretical analysis and practice may produce better results for both theory and practice. The analysis of law observance offers to legal philosophy the exploration of a hitherto neglected field, viz. an interrelation of significance for the understanding the social nature of the law and its establishment in society. Hence in this respect the analysis of law observance can and should be integrated into the Marxist theory of law, being a social theory of law.1 Law observance is one of the fields of the realization of law: whereas the application of law embraces the law enforcement by authorities vested with powers for it, law observance materializes in the actions, conduct and relations of the members of society not in possession of such powers. The realization of the law is a wider notion than that of law observance. It embraces all social relations and conducts conforming to what is legally prescribed irrespective of whether or not that law has a function in the genesis of this relation and conduct at all. In the application of law, as something in the forefront of the investigations of jurisprudence, in the typical instance we can in each case demonstrate the relations of law and the conduct of the authorities. This is the case because either the concrete form of the manifestation of law, i.e. the provision of law, will serve as the pattern of all authoritative actions, or the decision from which the inquiring brain will derive a general principle of action will become the law. In law observance, on the other hand, immediacy is atypical. When therefore the term "law observance" is used in the meaning of the social realization of law, we cannot treat the notion as some sort of an analogy of the application of law. Law observance is a specific relationship between law and society. The notion of this relationship cannot in all cases be derived from the general traits of law application or realization. Since law observance is a social relationship its genus proximum must be found in social and not in par excellence legal interrelations. It is the interrelation with the law that adds the differentia specifica to the social genus of law observance. The term "law observance" refers to the circumstance that people observe something. And in this observance obedience to what is observed is in all cases essential: observance more or less refers to the guided nature of the action, the subordination of the human will to another will or its objectivation. The conformity or subordination to an exterior will manifesting itself in any form from the definition of an abstract objective to a concrete instruction has been given the designation of obedience, which of course does not preclude the manifestation and effect of the subordinate own will in the relationship of obedience. This is the case because in obedience relationships also the interest of the obedient may assert itself. Already certain bourgeois authors, 1 SZABÓ, I. : A jogelmélet alapjai (Foundations of the theory of law) Budapest, Akadémiai Kiadó, 1971. Acta Juridica Academiae Scientiarum Hungaricae, Tomus 21, 1919