Csaba Varga

I. Playing a Game II. The Precondition to Mete out a Legal Sanction III. A Non-cognitively Homogeneous Activity IV. The Reproduction of the Law as a System 1. The Claim for Normative Closedness 2. The Openness of the Communication about Facts Rule of law proclaims the ethos of legal distinctiveness through institutionalizing normative closure, while the rule of facts proclaims a legal functioning embedded in facts as rooted in common sense evidence, backed by practical openness in its functioning. All in all, while rule of law argues for the law’s self-differentiation, the rule of facts ascertains why legal enterprise is (notwithstanding the same) what the heterogeneity of everyday practice and experience suggest it is. In the final analysis, I guess that these two aspects are able only in supplementation of one another to serve the common interest in making the law operate in a socially meaningful way. That is, they are to guarantee distinctively legal operation actually taking place, on the one hand, at a time when and under the conditions in which all its normative preconditions are fully met, on the other.

There are internationally set criteria that apply in the case of a legacy of grave and systematic violations of human rights, generating obligations of the state towards the victims and society. They specify: a right of the victim to see justice done, a right to know the truth, an entitlement to compensation and nonmonetary forms of restitution, as well as a right to reorganized and accountable institutions. Facing the complete failure of implementing the first three points, one can claim that none of them has been fulfilled in Hungary since the fall of Communism, almost one quarter of a century ago. This paper analyses the context in which constitutional adjudication may confront certainty of law with the very idea of justice by putting an end to any progress of leaving the legacy of Communism behind. As a consequence, the Rule of Law becomes a mere simulacrum.