Leon Petrażycki: Law, Emotions, Society 9781138489790, 9781138489820, 9781351036740

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“Leon Petrażycki remains a key figure in the scholarly study of law, even though his work is still not sufficiently known despite its acknowledged role in the development of the sociology of law. Not only for historical reasons but for scholarly objectives as well, Editors Edoardo Fittipaldi and A. Javier Treviño are to be commended for assembling this valuable collection of contributions on the work of Petrażycki. Written by an admirably international group of scholars, the assembled chapters provide much food for thought for those of us working to develop scientific perspectives of the place of law in society, most clearly by discussing the work of Petrażycki against the sociological realism to which he sought to develop an alternative.” Mathieu Deflem, Professor of Sociology, University of South Carolina “This well-​edited collection finally allows the English-​speaking reader to begin to take the measure of one of the most original thinkers in the philosophy of law, sociology of law, and psychology of law. For those prepared to think through Leon Petrażycki’s ideas, studies of legal consciousness will never be the same.” David Nelken, Professor of Comparative and Transnational Law, King’s College, London “This collection offers a valuable scholarly introduction to Leon Petrażycki, an early 20th century legal thinker who engaged creatively with sociology, psychology and philosophy in advancing a comprehensive theory of law. The contributors, many from Russia and Eastern Europe, explain his intellectual influences and the social-​political context. Critical essays consider his relevance for the law and society movement.” Max Travers, Associate Professor in Sociology and Criminology, University of Tasmania

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LEON PETRAŻYCKI

The early 20th-​century Russo-​Polish legal thinker Leon Petrażycki (1867–​1931) developed a comprehensive social psychology of law. Because only a fraction of his work is available in English, Petrażycki is today little known and seldom discussed in the Anglophone countries. This volume aims to remedy this deficit by introducing Petrażycki’s life and work specifically to an English-​speaking audience. It is intended as a reappraisal of some of his views in the context of current advancements. This collection of 12 chapters produced by a panel of international scholars from various social science fields will be useful to a new generation of students formulating their own theories and research on socio-​legal behavior. Leon Petrażycki: Law, Emotions, Society will be of interest to students and scholars of sociology of law, socio-​legal studies, and philosophy of law. Edoardo Fittipaldi is Professor of Sociology of Law at the State University of Milan. He is the author and editor of several books, essays, and articles in English, Italian, and Russian. A. Javier Treviño is Professor of Sociology at Wheaton College. He is the author and editor of several books including The Routledge International Handbook of Talcott Parsons Studies (Routledge, 2022).

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LEON PETRAŻYCKI Law, Emotions, Society

Edited by Edoardo Fittipaldi & A. Javier Treviño

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Cover image: © Getty Images First published 2023 by Routledge 605 Third Avenue, New York, NY 10158 and by Routledge 4 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN Routledge is an imprint of the Taylor & Francis Group, an informa business © 2023 selection and editorial matter, Edoardo Fittipaldi & A. Javier Treviño; foreword, Roger Cotterrell; individual chapters, the contributors. The right of Edoardo Fittipaldi & A. Javier Treviño to be identified as the author[/​s] of the editorial material, of Roger Cotterrell for the foreword, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. Library of Congress Cataloging-​in-​Publication Data A catalog record for this title has been requested ISBN: 9781138489790 (hbk) ISBN: 9781138489820 (pbk) ISBN: 9781351036740 (ebk) DOI: 10.4324/​9781351036740 Typeset in Bembo by Newgen Publishing UK

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[T]he abolition of serfdom in Russia under Alexander II—a ... legal reform realized under the action of the intuitive law of cultured and advanced personalities headed by the monarch—was far in advance of the development of the intuitive law of the great majority of the population.The intuitive law ... of the majority of the squires and most of the peasants ... was, at the time when the Emancipation Manifesto was promulgated, the law of master and slave. The squires ascribed to themselves the corresponding rights with regard to serfs, while the latter ascribed to themselves corresponding obligations with regard to their masters and corresponding rights to the latter—in general, not merely on the basis that such was the ... positive law, but also (and independently thereof) … according to their intuitive law views. ... Some peasants—chiefly those who were aged—preserved for decades, and to the end of their lives, the earlier intuitive mentality of the law of serfdom and were unwilling to know or to acknowledge the reform, declaring to their masters that they considered it their sacred duty to serve faithfully and truly for the future also. But the vast majority—especially the young—were liberated very swiftly indeed from their former servile, intuitive law consciousness and imbued with the opposite intuitive law convictions, and the converse reform would have been absolutely unthinkable a year, or even less, after the publication of the manifesto because of the corresponding intuitive law revolution in the national mind. (Leon Petrażycki [Nicholas S. Timasheff ed.], Law and Morality: Leon Petrażycki. Routledge, 2011: 239–240)

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CONTENTS

List of Contributors  Foreword by Roger Cotterrell  Introduction: The Legal Consciousness of Leon Petrażycki  A. Javier Treviño

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PART I

The Man and His Context 

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1 A Brief Biography of Leon Petrażycki  Aleksejs Petrazickis

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2 Leon Petrażycki and Georges Gurvitch: Normative Facts as a Litmus Test for Political Convictions  Mikhail Antonov 3 Leon Petrażycki and Adam Podgórecki: On the Reception of the Psychological Theory of Law in Poland under Communism  Krzysztof Motyka 4 Science, Art, and the Pluralist Legacy of Leon Petrażycki  Carol Weisbrod

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PART II

Main Concepts and Issues 

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5 Leon Petrażycki’s Unfinished Project: Sociology as a Rigorous Science  Elena V. Timoshina

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6 Leon Petrażycki’s Reconstruction of Normative Experiences  126 Lorenzo Passerini Glazel 7 Petrażycki’s Puzzle of Jural Emotions: Bridging the Psychological Theory of Law with Modern Social and Psychological Sciences  Edoardo Fittipaldi 8 Leon Petrażycki’s Two Dimensions of Law  Jacek Maria Kurczewski

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PART III

Legacies to the Social Sciences 

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9 A Communicative Approach to Leon Petrażycki’s Theory of Law  Andrey V. Polyakov

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10 Petrażycki’s Theoretical Contributions to International Law  209 Oleksandr Merezhko 11 Leon Petrażycki’s Views on Religion  Piotr Szymaniec

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12 Petrażycki’s Legacy to the Sociology of Language in the Context of Slavic Studies  Dalibor Sokolović

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Glossary  Index 

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CONTRIBUTORS

Editors Edoardo Fittipaldi is Professor of Sociology of Law at the State University of

Milan (Italy).

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A. Javier Treviño is Professor of Sociology at Wheaton College, Massachusetts

(USA).

Contributors Mikhail Antonov is Professor of Legal Theory at the Higher School of Economics

of St. Petersburg (Russia). Jacek Maria Kurczewski is Professor at the Institute of Applied Social Sciences of

the University of Warsaw (Poland). Oleksandr Merezhko is Chairperson of the Committee on Foreign Affairs and

Inter-​Parliamentary Relations of the Parliament of Ukraine and was formerly Professor of Law at the Kyiv National Linguistic University (Ukraine). Krzysztof Motyka is Professor at the Institute of Sociological Sciences of the John

Paul II Catholic University of Lublin (Poland). Lorenzo Passerini Glazel is Research Fellow in Philosophy of Law and Adjunct

Professor of Theories of Interpretation at the University of Milano—Bicocca (Italy).

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Aleksejs Petrazickis is an independent researcher and grandson of Leon

Petrażycki’s brother Seweryn (Canada). Andrey V. Polyakov is Professor of Law at St. Petersburg State University (Russia). Dalibor Sokolović is Professor in the Department of Slavic Studies of the Faculty

of Philology at the University of Belgrade (Serbia). Piotr Szymaniec is Professor and Director of the Institute of Socio-​Legal Studies

at Angelus Silesius State University in Wałbrzych (Poland). Elena V. Timoshina is Professor of Law at St. Petersburg State University (Russia). Carol Weisbrod is Professor Emerita of the Law School of the University of

Connecticut (USA).

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FOREWORD

Leon Petrażycki was one of the most original, imaginative, and acute legal thinkers of the 20th century. Few scholars have combined his degree of conceptual rigor and analytical precision as a juristic thinker and philosopher with such an expansive, insightful, and empirically informed vision of the legal and moral landscape. Petrażycki seems the epitome of the polymath: endlessly inquisitive about many fields, ready to create his own original methods for studying them, unsatisfied with surface impressions, and always concerned to pursue his inquiries in depth. Yet, however far his researches might take him, he stayed—at least as evidenced by his published writings—centrally focused on understanding the nature of law. But he understood law in far wider terms than most other scholars have done and attached profound ethical and social significance to it. Writing in Tsarist Russia over a century ago, Petrażycki was a humanist in an authoritarian political environment, a proto-​feminist in a traditional and unequal society, and a visionary of a better ethical and social life in a nation of seemingly unchanging ancient social structures. He underpinned his thinking with his own system of psychology which he saw as the key to understanding how law works. His range of interest and thought about social life in the times in which he lived can seem almost limitless. And his work still has many resonances for contemporary scholarship. The idea of legal pluralism—the normative condition of different kinds of law interacting and perhaps competing in the same social setting—is central today in understanding how different legal regimes interact in and between societies. Petrażycki’s idea of legal pluralism is one of the most radical in legal literature but also one of the most precisely developed. And his view of law’s potential moral

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destiny is a sharp counterpoint to today’s more prosaic instrumental approaches. The substantial literature about his work confirms that it has kept its power to challenge and stimulate scholars throughout the century since he wrote. So, why is Petrażycki not widely known in the international world of legal scholarship? There are several answers. First, as a Polish scholar working in St Petersburg until 1917, he wrote his most important works in Russian. Only about a fifth part of Petrażycki’s two main Russian works has been translated into English and these translations, substantial as they are, need to be put into a larger context of his thought. More of his writings need translation. In the meantime, it is mainly Polish and Russian scholars, and others with access to the Russian sources, who have worked tirelessly to mediate his ideas internationally. Also crucial have been accidents of history. As the biographical material in this book explains, Petrażycki’s glittering career in Russia was effectively ended by the 1917 revolutions. His subsequent relocation to his native Poland was compromised by many factors including the instability of the times. No major English translation of his work appeared until 1955, long after his death. His pre-​1917 international fame as a great Polish-​Russian jurist evaporated in the international turmoil of the first half of the 20th century. Much has been written in English about his work but it is generally scattered and sometimes hard to access. However, the main reasons for the international neglect may be intellectual rather than historical. Both legal philosophy and sociology of law have developed in very different directions from those Petrażycki envisaged for these fields. The present book should alert many readers to what may have been lost by the neglect of his scholarship. As regards legal philosophy, Petrażycki’s psychologically grounded concept of law is wholly at odds with the infinitely thinner, paler, more conservative ideas of law that typify much of this philosophy today. Law is changing its character—and its relation to the state—especially in the face of international and transnational developments. Reading Petrażycki is an invitation to recognize change not only in law’s diverse social contexts—sharply reflected in his writings—but also in how law itself might be re-​envisaged as a regulatory idea. As regards sociology of law, much empirical socio-​legal scholarship today avoids hard questions about conceptualizing law; understandably, it leaves them to jurists and philosophers.Yet, if sociology of law is to be able to engage with juristic debates, as perhaps it sometimes should, it needs resources to question ideas about the nature of law that it often takes for granted. Petrażycki’s thinking, considered from many viewpoints in this timely book, provides strikingly original resources for this re-​examination.

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Foreword by Roger Cotterrell  xv

These important and insightful essays introduce and explore the range of Petrażycki’s main theories, his influence on later scholarship, and his relevance in intellectual fields that are significant today. They should do much to remove the adjective “unrecognized” that has previously, too often, had to be attached to this great legal thinker. Roger Cotterrell Anniversary Professor of Legal Theory Queen Mary University of London February 2022

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INTRODUCTION The Legal Consciousness of Leon Petrażycki A. Javier Treviño

Introduction It is difficult to overestimate the creative contributions of the early-​20th century Russo-​Polish legal thinker, Leon Petrażycki (Pe-​trah-​ZHEETS-​kee). The bulk of his writings is still only available in the three languages in which he wrote, German, Russian, and Polish, and therefore inaccessible to many Anglophone readers. This volume attempts to bring to Western scholars greater recognition of Petrażycki and his views on law-​related matters.

A Life Leon Petrażycki was born in 1867, in present-​day Belarus, but what at the time was a part of the Russian empire. His birth followed on the heels of tsar Alexander II’s great reforms of 1861 and the judicial reforms of 1864 that restructured the legal order. Petrażycki was of Polish nobility, a Roman Catholic whose first language was Polish. These circumstances, coupled with the tsarist government’s political and cultural oppression of Poland, influenced Petrażycki’s identity as a transnational intellectual educated in Russia. At the University of Kyiv, Petrażycki dedicated himself to legal studies at which he excelled. Particularly interested in Roman and civil law, he obtained a scholarship to continue his education at the University of Berlin. His two years in Germany likely had significant influences on Petrażycki’s lifework. During that time, he participated in the debates concerning the preparation of the new German Civil Code, a process that involved the conscious molding of law, which may have instilled in him a sensitivity for distinguishing between what are today called normative jurisprudence, sociology of law, and legal policy. Another connection DOI: 10.4324/9781351036740-1

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to his experience with the Civil Code was his first two books, published in the early 1890s in German, The Distribution of Crops and The Theory of Incomes, which dealt with issues of interpreting civil law; the latter outlined a scientific legal policy intended to guide lawmakers. Moreover, it would have been highly probable that while in Germany he came under the influence of Rechsstaat liberalism, the political philosophy that advocated for a rule-​of-​law state. Finally, doubtless due to the fundamentals of psychology that he learned from attending Wilhelm Wundt’s seminars, Petrażycki began to consider the psychological influences of law on human conduct. The upshot is that Petrażycki’s intellectual experiences in Germany likely had some effect on his rethinking of the traditional, positivist, notion of law. On returning from Germany, Petrażycki gave a lecture at the St. Petersburg Legal Association where he began to form the basis of his “psychological” (and sociological) theory of law. In Kyiv, Petrażycki wrote Introduction to the Science of Legal Policy, where he proposed an applied legal science founded on the principle of social engineering through law, in the sense of Roscoe Pound. On the strength of this work, Petrażycki was granted a master’s degree in Roman Law. The following year, in 1897, he defended his doctoral dissertation at the University of Kyiv and was subsequently appointed Professor of Jurisprudence at the University of St. Petersburg. That professorship had previously been held by the great legal scholar, Nikolai Korkunov, whose notion that the state is a psychological phenomenon Petrażycki would later elaborate. Petrażycki remained at the University of St. Petersburg for the next 20 years, the period of his most intensive and productive work. He became the Law School’s first elected Dean when the university was granted autonomous status following the 1905 revolution. Petrażycki offered his famous seminar on the general theory of law and morality, which he taught three times a week throughout the academic year. A lively lecturer, he would hold spellbound up to 1,000 students who regularly filled the university’s Great Hall to hear him declaim on the psychological theory of law. Many students left disappointed, however, because Petrażycki would coin terms, on-​the-​spot, which they found difficult to understand. There was also the fact that, as he once put it, he “thought in Polish, wrote in German, and lectured in Russian.” Petrażycki did not confine his activities to academia; he was also engaged politically. He served as co-​editor of the weekly liberal newspaper, Pravo, which was devoted to establishing a legal culture and a Rechsstaat in Imperial Russia. In many of the articles he wrote for Pravo, Petrażycki warned that, without a legal order based on the protection of individual rights, social reforms would not have beneficial outcomes. In 1904, he and the other editors of Pravo openly proclaimed the incompatibility of tsarist autocracy with the rule of law. Further, as an expert in legislation, Petrażycki advised Sergei Witte of the Committee of Ministers, in improving the freedom of the press and religion, workers’ insurance, and the unity of the judiciary. The following year, Witte, now Prime Minister of Russia, invited Petrażycki to participate in the committee to end the Russo-​Japanese War.

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Petrażycki, however, did not accompany the Russian delegation to the peace conference in Portsmouth, New Hampshire. A constitutional democrat with liberal ideas, Petrażycki joined the Constitutional Democratic Party (KaDets) that advocated for a rule-​of-​law state in Russia. Along with other members of the Russian intelligentsia, he was also elected to the Party’s Central Committee. Lenin criticized Petrażycki for his insistence on subjectivism and regarded him as one of the Constitutional Democratic Party’s conservative members. Petrażycki, however, considered his own political views to be those of a moderate liberal seeking the peaceful transformation of the autocracy into a constitutional monarchy. In 1906, Petrażycki was elected to the first Russian parliament, the State Duma, as the deputy from St. Petersburg representing the KaDets. Other influential intellectuals elected to the Duma included Pavel Novgorodtsev, Maxim Kovalevsky, and Sergei Muromtsev, the latter serving as its president. In the Duma, Petrażycki participated in the work of three commissions: agrarian, civil rights, and parliamentary immunity. When the Duma was dismantled by Imperial decree only a few weeks later, about 200 former deputies, mostly members of the Constitutional Democratic Party, signed the so-​called Vyborg manifesto to protest the dissolution. Among other things, the manifesto called for the population not to pay taxes to the tsarist government, to refuse conscription into the army, and to refuse to comply with other public obligations until the election of a new parliament. Pressured by colleagues, Petrażycki also signed but did so reluctantly for a couple of reasons. First, he believed that, though regrettable, the Duma’s dissolution was legal, while the manifesto’s resistance to it was illegal. Second, he believed that the manifesto was too focused on short-​term political gains and ignored the long-​ term interests of liberal reform. Due to his endorsement, Petrażycki was found guilty of inciting disobedience to law, imprisoned for three months, and barred from all political activity. He also lost his position as Dean of the Law School and was demoted to the rank of associate professor. Other signatories, including Muromtsev and Novgorodtsev, were also incarcerated. Indeed, it is estimated that the majority of the leading social thinkers of the time served prison terms for their political activities, and about half spent time in enforced exile. These unfortunate experiences drove Petrażycki to withdraw from politics and to lose interest in initiating a popular legal consciousness and a rule-​of-​law state.They may also explain his psychological orientation as an adaptation to the autocracy’s ban on studying the social and political attributes of legal phenomena. Moreover, despite his civic engagements, the bulk of Petrażycki’s writings on law and legal policy are not expressions of political activism. Further, his general theory is silent on the issues of Russian history, culture, and politics. In 1908, the president of the University of St. Petersburg ordered Petrażycki to endorse an affidavit forbidding him from participating in political activities against the imperial government and the tsar. This time, Petrażycki refused to sign. As a

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result, it was only much later that he was reestablished as full professor and as Dean of the Law School. After the downfall of the Romanov dynasty in March of 1917, Petrażycki, who had approved of the tsar’s abdication, was appointed to the Supreme Court by Alexander Kerensky’s provisional government. However, due to his increasing disillusionment with Russian political affairs, he did not participate in its activities. When the Bolshevik revolution took place later that year, Petrażycki realized that his liberal ideas would not be implemented and opted to leave Russia. Petrażycki’s former student at the University of St. Petersburg, Pitirim Sorokin, a personal secretary to Kerensky, arranged his transportation to Poland and Petrażycki departed Russia, never to return. In 1918, Poland regained its independence and Petrażycki obtained Polish citizenship, settling in Warsaw. The Law School at the University of Warsaw created, especially for him and at his request, the country’s first chair in sociology. This specific choice of discipline may indicate his awareness that his psychological approach to legal phenomena required greater sociological focus. Though he lectured on various subjects, he was most concerned with the sociology of law. In addition, Petrażycki was awarded an honorary Doctor of Laws degree by the University of Wilno (now Vilnius University in Lithuania). Despite these gestures of presumed goodwill, some in the Polish academic community reacted toward Petrażycki with distrust and animosity.This may have been due to Petrażycki’s voluntary russification throughout most of his life and perhaps also due to personal jealousies and resentments from his colleagues given that he was intellectually in a different league from them. Petrażycki’s ideas, to say nothing of his identity, were caught between two worlds. For example, some have indicated that his ideal of love is explained by his essentialist “Russianness,” noting that love was a Russian version of the doctrine of progress (an ideal that even the Russian jurist, Pavel Novgorodtsev, admitted would seem fantastical, sentimental, and impracticable to Western Europeans). On the other hand, given that every patriotic Pole was steeped in the tradition that emphasized the “ethnicization” of social and political relations, it has also been argued that Petrażycki’s ethical philosophy—​his concern with law and morality—​ is fundamentally Polish. But Petrażycki also occupied a third cultural world, the Slavic—​both Russian and Polish—​rooted in a history that rejected the conception of law as a command by a legally constituted executive power. Thus, along with other Slavic legal thinkers like Sergei Muromtsev and Pavel Novgorodtsev, Petrażycki was opposed to legal positivism. In any event, at the University of Warsaw Petrażycki conducted a sociological seminar and continued to attract scores of students. He had long intended to prepare a special treatise in the sociology of law. And even though he had several manuscripts in sociology in various stages of development, a couple were lost in Russia during World War I. He took another with him to Warsaw but never completed or published it, due to his suffering from poor health and bouts

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of depression. Whatever sociological documents Petrażycki may have ultimately produced, they were likely destroyed during the 1944 German occupation of Warsaw that reduced the city to rubble. Petrażycki’s additional involvements in academic affairs included serving as vice-​president of the International Institute of Sociology in the 1920s. At least five Russians had previously held that office, three of whom were Nikolai Kareev (1899), Maxim Kovalevsky (1895, also president, 1905), and Nikolay Mikhaylovsky (1904). In 1928, Petrażycki was elected to the International Academy of Comparative Law in the Hague, in which he represented all Slavic countries. As he had done in Russia, Petrażycki was also engaged in practical politics in Poland. Following independence and reunification, the Polish Republic inherited a territory divided into separate jurisdictions, each with its own legal code. One of the nation’s first acts was to create a codification commission to produce a country-​wide unified legal system and Petrażycki played an active role in that work. In time, however, he began to increasingly disagree with the direction the new Republic was taking, marred as it was by political instability and repression in the form of breakdown of parliamentary procedures, vote rigging, competing ethnic agendas, and the use of intimidation as a tool of governance. The nationalistic and anti-​democratic forces that arose in Russia and in Poland contributed to Petrażycki’s marginalization and disenchantment in both countries. In Russia, his psychological subjectivism was condemned by Soviet jurisprudence for negating historical materialism. In Poland, Petrażycki was especially disturbed by the coup d’état of 1926 that transformed the democratically elected government into an authoritarian regime. The pessimism engendered in him by events in those two countries, but also by similar developments throughout Europe, deepened his depression. On May 15, 1931, he died by suicide in Warsaw. He was 64 years old. Several reasons have been offered to explain Petrażycki’s suicide, all of which to some extent involve his tenuous mental state.The first is that he had exhausted his intellectual powers and no longer had new ideas. He preferred to die rather than to live without creating. Another has to do with the persecution he experienced in his homeland where he was treated coldly because Polish society saw him as a Russophile, and perhaps even a Russian spy. This contributed to his despondence and demise. Finally, his suicide was an expression of his disappointment with the wars, revolutions, destruction, and calamities of the Interwar period. In the face of such inhumanity, Petrażycki could not continue theorizing about the ideals of love. As to his character, Petrażycki was, above all, a man of principle who usually adhered to his liberal beliefs. We have seen that he refused to accept the offer by the president of St. Petersburg University to reappoint him to full professor on the condition that he abstain from activity contrary to the penal law, civil regulations, and the monarchy. Petrażycki explained that acceptance of this demand would be against his political ethics and personal dignity. And although he signed the Vyborg

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manifesto, he did so only because he did not want to break ranks with the other Duma deputies, members of the Constitutional Democratic Party. Petrażycki believed the manifesto was unlawful and signing it contradicted his commitment to the rule of law, a foundational principle of constitutionalism. Besides being principled, Petrażycki was also proud and ambitious and could be arrogant. He frequently told his followers that jurisprudence had been in a pre-​scientific stage of development, and that with his work it was ascending to the level of science. He also harbored personal insecurities, often complaining that he had not been given proper credit for his contributions. He accused the German legal philosopher, Rudolf Stammler, of plagiarizing his idea of a conscious legal policy and repeatedly pointed out that he, not Stammler, had instigated the revival of natural law (in proposing a legal policy premised on the idea of love for all sentient beings). On issues of law and morality, Petrażycki’s psychological approach was in opposition to Novgorodtsev’s rational one. Whatever their differences, Petrażycki was convinced that Novgorodtsev and his Moscow school of legal philosophy had attempted to discredit him and his St. Petersburg school of legal philosophy. But Petrażycki was supportive of others in their careers. For example, he was so impressed with his colleague Bogdan Kistiakovsky’s work in jurisprudence that Petrażycki found him a teaching position at the Demidov Juridical Lyceum in Yaroslavl, which Kistiakovsky accepted. Petrażycki was also conflicted. Like other intellectuals of the Russian empire, he was highly educated, largely Russified, and spoke Russian with a Polish accent and Polish with a Russian accent. This led him to be seen as a foreigner in Russia and a foreigner in Poland. On the one hand, he emphasized his “Polishness” in imperial Russia where Poles were oppressed, and their national rights infringed. On the other hand, as a Duma member, he did not represent the Polish territories of the empire, but rather St. Petersburg, the Russian capital city. While not a Polish nationalist, Petrażycki was sympathetic to the Polish liberation movement. Moreover, in 1900, he represented St. Petersburg University at the ceremony of the 500th anniversary of the re-​founding of Jagiellonian University in Kraków. In 1912, he was elected to the Polish Academy of Sciences and Letters and served as president of the Association of Polish Lawyers and Economists in St. Petersburg. Despite all these Polish involvements, Petrażycki was also immersed in the intellectual, legislative, and political life of Russia. Petrażycki’s life and work were marked by the political events and intellectual currents of the last decades of tsarist rule. He held progressive views best described as those of a reform-​minded center-​right liberal. This is because he believed in gradualism in sociopolitical development. He shared the current optimistic view on evolution that it was conducive to unlimited progress. In this regard, Petrażycki believed in the adjustive evolution of humanity toward the achievement of motivated love and saw law as the catalyst. In formulating the psychological theory of law, he had to create his own psychology, similar to but also

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different from Ivan Pavlov’s discovery of the conditional reflexes made at the same time in St. Petersburg. Petrażycki published his major works during the last decade of the 19th century and the first decade of the 20th; among them are The Theory of Incomes, Introduction to the Science of Legal Policy, The Motives of Human Behavior, Introduction to the Study of Law and Morality, and Theory of Law and the State. In these books, he constructed an original theoretical framework that encompassed the philosophy of science, social psychology, sociology of law, legal policy, and legal and moral theory. But it is perhaps Petrażycki’s most enduring contribution that he found legal phenomena not in norms but in the human mind.

The Sociopolitical Context Petrażycki was born in the wake of some of the most liberal social reforms in the history of the Russian empire.To understand how his ideas took shape, it is necessary to put them in the context of the political advancements and backlashes that transpired during the last decades of the Romanov dynasty. This period began with the implementation of the so-​called great reforms of tsar Alexander II. Ever since the reign of Peter the Great in the 18th century, Russia had been open to Western influences. Alexander’s great reforms of the 1860s went a long way toward transforming the country into a modern society. The most momentous of these was the Emancipation Act of 1861 that abolished serfdom; it freed 52 million peasants and gave them the right to purchase land. Additionally, the judicial reforms of 1864 converted the law court from a highly arbitrary and confusing system to one of the most open and progressive in Europe. Also introduced into the judiciary was the principle of equality before the law, public trials, legal representation, and juries. These changes, however, did little to improve the legal conditions for most Russians. Even after emancipation, the peasants, who made up about 80% of the population, remained skeptical of state law and civil rights. Another significant political event that occurred a few years prior to Petrażyki’s birth but that affected him throughout his life involved his family and his native Poland. In 1862, Alexander II granted Poland partial autonomy from the Russian empire. However, the following year, Poles sought to establish a wholly independent homeland within the pre-​partition boundaries of 1772 and instigated an insurrection against Russian rule. Petrażycki’s father was accused of having been involved in the rebellion, his estates were confiscated, and he was sentenced to several months in prison. The Polish uprising unleashed Russian nationalism and a period of harsh repression. The tsarist government increased russification, particularly in the western provinces. The Russian language was made compulsory in Polish schools, and it was decreed that the Catholic liturgy be said in Russian. Alexander II’s assassination in 1881 consolidated autocracy and strengthened conservative forces.

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His successor, Alexander III, implemented reactionary counter-​reforms, among them those that terminated magistrate’s courts and imposed strict censorship. Also, the university statute of 1884 abolished university autonomy and instigated a system of surveillance. In addition, the professor’s association was suppressed; the election of administrative staff was prohibited; many professors were dismissed; uniforms for students were compulsory; and all students’ academic, social, and mutual aid organizations were suspended. This reactionary period during the 1880s produced wide political apathy among the populace. Following Alexander II’s assassination by political nihilists, the thinking was that social change through regicide, violence, and revolutionary activity was ineffective. True progress was to be achieved by the liberal populist doctrine of “small deeds,” a moderate, protracted approach for addressing immediate problems of everyday life. Many who subscribed to this gradualist strategy, including Petrażycki, would later form the core organization of the liberal constitutional movement. The Great Russian famine of 1891, a national disaster that the Imperial government could neither prevent nor manage, changed political thinking considerably. That calamity marked the end of the previous decade’s disillusionment and pessimism and gave rise to radical doctrines, like Marxism, that were beginning to take hold among the Russian intelligentsia. Indeed, the first significant Marxist group in Russia was formed in 1895 in St. Petersburg and led by Lenin. While some jurists like Bogdan Kistiakovsky had, by 1891, turned to Marxism, the sociologists Nikolay Mikhaylovsky and Nikolai Kareev, writing in 1894, stated that Marxism’s axioms were disconnected and untested and that the doctrine offered no theory of scientific importance. Liberals like the jurist, Boris Chicherin, condemned the radicals, believing that they would destroy the chances of liberalism. The liberals demanded the end of the autocracy and the establishment of a constitutional monarchy. They also sought a codified legal system based on rational jurisprudence to counter the tsarist practice of issuing capricious and discriminatory decrees. In 1896, the last Russian tsar, Nicholas II, ascended to the throne with an anachronistic faith in his unrestricted power. Like his father, Alexander III, he not only rejected progressive change he also instituted countermeasures to curb his grandfather’s,Alexander II, great reforms of the 1860s. However, as the 20th century opened, Russia experienced virtual economic collapse, shortages of materials and goods, and its industry was in perpetual crisis. This led to workers’ demonstrations and strikes, student protests, and sporadic peasant disturbances. Also, demanding reform were agencies dealing with the national economy, teachers’ and physicians’ associations, and local councils. Popular movements during the early years of the 20th century put Russia on a trajectory toward becoming a rule-​of-​law state. A new liberalism was organized in the form of the Constitutional Democratic Party that called for a constitutional government and basic civil rights like freedom of speech and assembly. At the

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same time, there arose a progressive legal philosophy among whose most eminent representatives were Petrażycki in St. Petersburg and Novgorodtsev in Moscow. For them, and for other legal thinkers like Kistiakovsky, law was a means to social change. Not everyone agreed. Leo Tolstoy, for example, criticized the liberals for thinking that political and legal reforms could bring about genuine improvement. What was really needed, Tolstoy argued, was a Christian morality that could only be achieved through individual self-​perfection. Besides, the recently emancipated and largely illiterate peasants of the empire were unsympathetic to the cause of law and did not trust legislative reform. By contrast, Petrażycki and other constitutionalists believed that the notion of individual and social rights was increasingly becoming part of the popular legal consciousness. What the Russian people needed was to be educated on the potentials of exercising those rights. They had to change their self-​perception from passive subjects of the tsar to active, self-​determining citizens. Only when they achieved this evolved legal awareness would the creation of a rule-​of-​law state, based on principles of democracy and constitutionalism, be possible. Events took a dramatic turn in 1905 when thousands of workers and their families marched toward the Winter Palace petitioning Nicholas II for civil rights and improved working conditions. Government troops fired on the marchers, killing and wounding hundreds. The massacre precipitated a rash of strikes and mutinies throughout the empire and marked a decisive break between the tsar and those workers who had until then remained loyal to him. Many Russians were now determined to end the autocracy. Professional unions combined to form a union of unions led by the Constitutional Democratic Party, the largest political party at the time. In response to the public unrest, Nicholas II announced the establishment of a constitutional government and a national representative assembly—​a State Duma with legislative function that would purportedly arouse the popular legal consciousness. Despite these changes, the tsar was to retain the title of autocrat and had veto power over legislation. In Germany, Max Weber had been following political events in Russia and doubted that the Russian experiment would bring about a representative constitutionalism devoted to individual rights. This was because not only did Nicholas refuse to surrender full control, but the industrial and financial bourgeoisie also did not have a material interest in such a development. Moreover, there was no chance that a strong political bloc would arise to sustain liberalism in the long run. Finally, the peasants sought a collectivist solution to their agrarian problems and cared little for individual rights.Weber described Nicholas II’s constitutional monarchy as a “pseudo-​constitutional” order, a concept that attracted the attention of Petrażycki’s fellow Duma deputy, Maxim Kovalevsky. Despite being an intellectual associate of Marx, Kovalevsky was no radical. He, like Petrażycki, believed in preserving a constitutional monarchy to save the country from the potentially dangerous disruptions of radical revolutionary change.

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If war patriotism during Russia’s entrance in World War I quelled anti-​tsarist fervor, by 1915, it was obvious that the Imperial government had been woefully unprepared to defend the country. Many were convinced that the days of tsarism were numbered and began planning for a new democratic constitution. In early 1917, Kerensky’s provisional government was created, thus ending 300 years of Romanov rule. By year’s end, Lenin and the Bolsheviks had overthrown the Kerensky government, seized power, and declared the Constitutional Democratic Party to be a party of enemies of the people.

Intellectual and Cultural Developments To understand Petrażycki’s main ideas about law’s social significance, its psychological foundation, and progressive use, as well as the reaction to his work, requires examining Russian cultural developments during the period between Alexander II’s great reforms of the 1860s and the Bolshevik revolution of 1917—​the span of Petrażycki’s life in Russia. This was a time that not only produced fruitful but also discordant currents in Russian intellectual thought. There arose during the fin de siècle a literary and artistic revival preoccupied with the self and introspection. Indeed, Leo Tolstoy, who propagated a Christian ethic of simplicity and pacifism, favored a kind of psychological self-​examination in developing moral consciousness. Similarly, Petrażycki regarded introspection as the main method for gaining insight into people’s emotional experiences of law. Whatever influence Tolstoy may or may not have had on Petrażycki’s advocacy of introspection, they held opposing views on legal thinking. While Petrażycki considered law to be more important than morality for the historical education of humanity, Tolstoy, a Christian anarchist, negated law completely. He maintained that all interpersonal relations could be addressed with love, and because juridical thinking was incompatible with evangelical love, he rejected law in all forms. Tolstoy further argued that the law courts contradicted the Gospel warning, “Judge not, that you may not be judged” and that no one, least of all the state, had a right to judge. Further, he saw the notion of human rights as alien to the Russian people and law as fatal to Christian morality. In his Christian anarchist treatise published in 1894, The Kingdom of God Is Within You, Tolstoy placed God’s law above all human law. In 1909, in a letter he wrote to a student of Petrażycki, Tolstoy further clarified his juridical position. There he attacked law as an instrument of the state that gave the powerful justification to pursue their interests no matter how violent the means. A couple of years prior to this correspondence, Petrażycki had criticized Tolstoy for his negative stance toward law and for treating it as inferior to morality. He stated that such anti-​legal views as Tolstoy’s stemmed from ignorance of the nature of law and morality as the two branches of ethics. Like Tolstoy, another religious sage with a socio-​mystical outlook, Fyodor Dostoyevsky, also disparaged law in the name of morality.This tradition of anti-​legal

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Introduction  11

prejudice saw interpersonal conflicts as being resolved through empathy, compassion, and mutual involvement. Anti-​legalism affected other thinkers during the late 19th century who also saw a prominent place for Christianity in Russian society. The philosopher, Konstantin Leontiev, advocated a mystic Christianity and was contemptuous of law. He believed that the Russian people understood, through Byzantine culture, monarchical and ecclesiastical authority much better than rational-​legal authority. Another philosopher, Vladimir Solovyov, based his system of social ethics on Christian ideals.While Petrażycki criticized Solovyov’s legal philosophy for its metaphysical elements, he accepted his social ideals of Christianity. Indeed, Solovyov’s claim that genuine love looks for the presence of the divine in humans, resembles Petrażycki’s theory of proactive love. Russian intellectuals also incorporated into their work the theme of morality. The great writers of Russia’s golden age in literature—​Gogol, Turgenev, Dostoyevsky, Tolstoy—​wrote conscientiously about society’s moral foundations. The sociologist Nikolay Mikhaylovsky noted that Russians instinctively immersed themselves in matters of morality. Indeed, most of the leading Russian sociologists of the 19th century, including Mikhaylovsky and Pyotr Lavrov, saw science and morality as closely intertwined and developing in tandem. Both contended that together with the scientific view of morality there was the moral view of science. Because the Russian word pravda meant both “truth” and “justice,” Mikhaylovsky referred to his methodology as the “pravda system,” which studied the social world (pravda-​truth) while being guided by questions of morality (pravda-​justice). Truth and justice were also ethical standards in Russian legal philosophy, and for Petrażycki pravda-​justice encompassed both the objective law and the subjective rights of the individual. Another central concern in late-​19th and early-​20th century Russia, a country caught between feudalism and modernization, was the idea of social progress—​the historical process of social change leading to the improved quality of human life and a rise in social consciousness. For example, Lavrov and Mikhaylovsky framed evolution in terms of Comte’s notion of the advancement of human thought and the secularization of knowledge. Thus, it was “critically thinking individuals,” to use Lavrov’s term, who as agents of sociocultural change, would bring about a conscious historical solidarity. Mikhaylovsky, whose prominence began the year Petrażycki was born, reformulated the Darwinian “struggle for existence” into the “struggle for individuality,” the ideal that the freedom and integrity of the individual are the end goal.Thus, for Mikhaylovsky, all considerations of social and cultural progress must focus, not on the interests of the empire, nation, or village community, but of the individual. Mikhaylovsky’s sociology was based on studying progress as the gradual realization of the wholeness of the individual. For Russian social thinkers, the most meaningful indications of social and cultural progress were the secularization of knowledge and the emergence of the agentic individual. For the sociologist, Nikolai Kareev, progress involved the

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individual’s subjective, or “psychic” advancement in the struggle for existence.This meant that progress was psychological and devoid of metaphysical presuppositions. According to Kareev, sociology’s goal was to broaden people’s conscious role in sociocultural change. The reform period of the 1860s witnessed the appearance of people’s critical consciousness, of public opinion, and an acceleration in the secularization of knowledge. One of the main intellectual and cultural movements in Russian philosophical thought of that time, nihilism, encouraged scientific knowledge, free of theology and mysticism.Then in the 1870s and 1880s, Lavrov and Mikhaylovsky developed a subjectivist sociology that eschewed metaphysics and instead focused on the results of cognition. According to them, all knowledge is subjective and the product of the human mind. Despite its name, subjectivist sociology was concerned with both the subjective purposiveness and the objective causality of social action. However, many subjectivist sociologists like Mikhaylovsky identified subjectivism with individualism, given that they saw individuals as history-​making agents. To understand their motivations, goals, and moral ideals, it was necessary that individuals—​their personality—​be treated as a complex of cognition, volition, and affect. Later, Viktor Chernov took the subjective method into the intersubjective realm by formulating a social psychology that examined the objective world of shared knowledge alongside people’s inner world. Only in this way could sociologists evaluate people’s values and subsequently derive a formula of historical progress. Echoing Petrażycki, Chernov maintained that there was no external legal process, only a social psychological process that is perceived from the legal point of view. Along with individualism and subjectivity, intellectuals in the late tsarist empire also turned to psychology in advancing scientific knowledge. While Pavlov focused on understanding the neurophysiological basis of behavior, Lavrov and Mikhaylovsky focused on the interaction of society and personality. Mikhaylovsky was one of the first to consider how psychic phenomena—​ impression, suggestion, imitation—​influence social phenomena. In 1888, he wrote that psychology and sociology had not matured as sciences due to the complexity of their subject matter and to the fact that their researchers, with their unconscious emotions, were also the objects of inquiry. This latter required combining objective facts and subjective (psychological) interpretations and considering that the researcher was both the investigating subject and the investigated object. Despite these fields’ underdeveloped condition, Mikhaylovsky had faith that the psychological and sociological causes of solidarity and evolution would soon be discovered. Sharing this optimism, Lavrov believed that psychology would provide the foundation, not just for sociology, but also for jurisprudence. This meant that sociology and jurisprudence needed to develop research techniques to address people’s inner motivations, drives, and goals.

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Nikolai Korkunov, who Petrażycki succeeded as chair of jurisprudence at the University of St. Petersburg, also traced law’s origins to the individual mind. According to him, law’s influence comes from people’s subjective belief that it orders social interactions. However, because this subjective belief, which is largely unconscious, is derived from the social environment, people see law as an objective order of interaction. Similarly, Petrażycki’s friend, Bogdan Kistiakovsky, maintained that legal norms were not external in themselves; they first exist in human consciousness and take on an external existence when they are expressed in the legal statutes or when applied in practice. Kareev extended these notions and proposed a collective psychology that, first, focused not on individual behavior but on collective behavior; second, considered not only the cognitive but also the volitional and affective aspects of collective behavior; and third, explored the conscious (or intentional) as well as unconscious (or unintentional) processes of social life. In his voluntaristic psychology, Lavrov examined these processes as they contribute to social progress. Regarding the unconscious processes, one emanates from the psyche while the other is derived from the social environment. The conscious process, by contrast, involves volitional interests that motivate individuals toward social progress. For Lavrov, progress results from social consciousness. Not everyone, however, saw psychology as foundational to sociology. One dissenter was Petrażycki’s colleague in parliament, Maxim Kovalevsky. Though Kovalevsky agreed that much of the social could be explained by what Tarde called “interpsychology,” he saw it as too reductionist to account for all social processes. Kovalevsky also rejected the subjective method in sociology and identified solidarity as the key issue of sociological research. Because the nature of all social phenomena proceeds from solidarity, law, for Kovalevsky, reflected the obligatory responsibilities individuals have to each other in generating cooperation. Thus, while the psychological approach led Petrażycki to focus on individual claims, or rights, the sociological approach led Kovalevsky to focus on collective duties. After the Bolshevik revolution, Mikhaylovsky’s subjectivism and Petrażycki’s psychologism found a mixed reception in Soviet Marxist ideology. Both came to be seen as “bourgeois” approaches that took as their initial subject individualism or the individual personality, rather than the masses. Soviet jurist Pyotr I. Stuchka rejected Petrażycki on the grounds that Petrażycki saw state authority as nothing more than emotional fantasies. This contradicted the Soviet view of state authority and workings of the party apparatus. Chief Soviet legal theorist of the 1920s, Evgeny B. Pashukanis, criticized Petrażycki for eschewing economic determinism and instead treating economic activity as a series of imperative-​attributive (contractual commercial-​individualistic) relationships. Another standard critique was that Petrażycki’s psychologism contradicted Marx’s aphorism that it is not people’s consciousness (emotional experiences and mental projections) that determines their social conditions, but their social conditions that determine their consciousness.

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The Work Petrażycki’s academic work was mainly concerned with developing a general theory of law premised on the psychology of emotions. As we have seen, theorists like Mikhaylovsky, Korkunov, Kistiakovsky, and Kareev had also considered psychology’s influence on law. But Petrażycki went further. First, he treated legal phenomena as manifestations of emotional experiences, or impulsions. Second, he focused on the law’s intuitive aspects. Third, he conceptualized the “legal” so extensively that it is involved in virtually every bilateral relationship imaginable. Finally, he created a scientific, or realist jurisprudence that took a pragmatic approach to lawmaking. The early version of Petrażyki’s psychological theory, which dealt only with the individual mind, was presented in the 1900 publication, Essays in Legal Philosophy. There he described law as a mental construct, an inner voice telling people what their rights and duties are in relation to others. Later Petrażycki conducted psychological studies and published a summary of his conclusions in his 1904 book, The Motives of Human Behavior. Four years later, in Theory of Law and the State, he laid the foundation to a more sociologically influenced psychological theory. Petrażycki rejected the positivist view of traditional jurisprudence that treated law as an external entity found in the statutes, judicial decisions, and law books. He regarded these—​and legal concepts like right, duty, property—​as reifications that emanate from people’s internal experiences. For him, law is a figment of the imagination that is projected onto persons and relationships. For example, two people are bound by a “contract” if they believe in its existence and that it attributes to them rights and duties. Its actual existence is not necessary. Because emotional experiences occur within the individual, the starting point for studying them can only be the method of introspection. This involves the internal observation of impulsions, like hunger, as they are occurring or impulsions experienced previously, such as recollections of being hungry. In this way, the researcher can also infer the existence of similar inner experiences in others. For Petrażycki, introspective insight into the emotional experience of legal phenomena was the main way to acquire knowledge of law and how it performs its social functions. Internal observation, however, needed to be supplemented by the external observation of people’s speech, facial expressions, body movements, as well as their written records, such as diaries and biographies. The psychology of his day being too restricted to construct an adequate, scientific theory of law, Petrażycki created a new psychology that went beyond the analytical categories of cognition, volition, and affect. In doing so, he added a fourth, emotions, or impulsions, that because of their bilateral nature are of greater significance in understanding legal phenomena. Another important formulation in Petrażycki’s theory is intuitive law, which is characterized by the absence of references to legal sources. There is no single intuitive law; there can be as many intuitive laws as there are persons and

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collectivities. It is diverse in content, emerges spontaneously from prevailing attitudes and values, and is adaptable to situational circumstances. Because intuitive law is part of the popular legal culture, it is equated with the sense of justice. Petrażycki’s notion of legal intuition—​of deep, instinctual conviction—​ was not unique to him. It is similar to Mikhaylovsky’s subjective sociology in that both see the individual’s personal attitudes as creating norms and relations. It comes even closer to Kistiakovsky’s later conceptualization of the “intuitive consciousness” of justice, which Kistiakovsky believed was found in the traditions of the peasant’s village commune. Petrażycki’s novel contribution, however, is his analysis of the differences between official law and intuitive law. Though Petrażycki acknowledged the existence of official intuitive law, for example, when a criminal provision indicates only the minimum and maximum limits of punishment for a crime and it is up to the judge’s or jury’s conscience to determine its exact amount, he maintained that the more common type, official positive law, relies on the external authority of state officials, whether in the form of a statute, a court decision, or a constitutional convention. Intuitive law, by contrast, relies only on the inner quality of the legal consciousness of individuals and groups. Petrażycki’s psychological approach was not reductionist. His theory was sociologically oriented in that it explained legal phenomena, not only as emotional experiences and mental projections but also as social interactions based on correlative rights and duties. Moreover, his investigations of law’s educational function illustrate that Petrażycki dealt with its social forms. In short, Petrażycki saw law as having personal as well as interpersonal features. Aside from a new psychology, Petrażycki required a scientifically informed epistemology on which to premise his legal theory. According to him, scientific theories must deal with classes of phenomena that share distinctive features discernible by internal or external observation. Such classes serve as a starting point in formulating a theory of law that refers to a specific class of phenomena and only that class. If the theory does not cover the whole class but only applies to part of it, it is too narrow; if it includes phenomena outside of the given class, the theory is too broad. Because statutory law gave primacy to political coercion, it was not a class of legal phenomena on which an adequate, or scientifically, useful legal theory could be built. Petrażycki therefore reconceptualized law so that it would refer to a class broad enough to include all legal phenomena (anywhere and at any time) but narrow enough to include only legal phenomena. For Petrażycki, human behavior is motivated by impulsions expressed, for example, as hunger, sex, disgust, and anger. Impulsions are at once active (having to do with volition) and passive (having to do with cognition and affect). There are also attractive impulsions, like hunger and sex that, once satisfied, bring pleasure and repulsive ones, like disgust and anger, that produce pain and annoyance. As phenomena that are dependent not only on stimulus-​response functions, but also on subjective meanings, impulsions underlie law and morality.

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Petrażycki saw law and morality as two different types of ethical impulsions. He defined morality as an imperative that prescribes certain duties on the part of individuals toward others but gives these latter no rights to fulfillment by the former. One example of this kind of one-​sided, passive motivation is Jesus’ injunction:“Whosoever shall smite thee on thy right cheek, turn to him the other also.” In this case, the individual who is struck has a moral duty to refrain from retaliating.The injunction, however, does not give the assaulter the right to strike. By contrast, law not only obligates individuals to act or refrain from acting but it also attributes rights to their fulfillment. For Petrażycki, all actions and only those actions with this imperative-​attributive character are law actions, which he sees as the subject for an adequate legal theory. For Petrażycki, not only are all types of law—​civil, criminal, administrative, constitutional, international—​reducible to bilateral rights and duties, but so are many rules regulating social interactions, including the rules of sports, games, and etiquette. For example, in polite society one is duty-​bound to greet an acquaintance on first meeting them, and the latter has a right to that greeting, so that its omission would be experienced as a snub. Moreover, Petrażycki ascribed the imperative-​attributive relationship not only to persons (natural and juridical) but to all beings regarded as animate from the subject’s point of view, which may include supernatural beings, animals, mythological creatures, movie and videogame characters, and electronic avatars. This means that nearly everything and anything can constitute law, a legal experience, or a legal subject. Such a comprehensive conceptualization of law seems to violate Petrażycki’s own standard of adequate theory. Indeed, Kistiakovsky argued that Petrażycki’s theory of law was too broad because it dealt with transactions that were beyond the scope of jurisprudence (like making a bargain with the devil), and too narrow, because it did not deal much with state law. Kistiakovsky concluded that Petrażycki’s theory was not a theory of law, but a theory of legal consciousness. Compared to passive motivation, which starts from the awareness of duties, active motivation starts from the awareness of rights. Rights-​based thinking allows for the emergence of individual agency and a civic culture that had not existed in Imperial Russia. In a rule-​of-​law state, imperative-​attributive legal relationships (essentially, feelings of obligation, accompanied by the feeling that the content of the obligation is also someone’s right) give people greater realization of their legal standing and a greater sense of personal dignity. This occurs for instance when failure by an obligor to fulfill a duty produces in the obligee an experience of injury, which evokes anger, when a right is infringed. Thus, unlike, for example, Nikolai Korkunov who saw law’s function as the reciprocal delimitation of one’s own and other people’s interests, Petrażycki saw law’s function as the education of people to the awareness of their rights—​not just any rights, but of those that lead to proactive love or other desirable qualities like thriftiness and industriousness. Therefore Petrażycki, as a constitutionally minded member of Russia’s first parliament, incorporated into his theory a liberal and subjectivist conceptualization of individuals as legally informed citizens.

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According to Petrażycki, it is through social actors’ experiences of rights and duties that law’s imperative-​ attributive motivation influences human behavior. If a certain behavior is socially beneficial it is associated with positive evaluations within the group. If detrimental it is associated with negative evaluations and eliminated. These social evaluations act as positive and negative reinforcers in a way that is somewhat reminiscent of Pavlov’s operant conditioning. This unconscious natural selection of emotions takes place as intuitive legal impulsions educate people on how they should act and what they are entitled to expect from others. In this way, law develops attitudes and habits that will lead toward a coordinated social order. When law fulfills its educational mission, Petrażycki asserted, it will become unnecessary and cease to exist. Not in the sense of the Marxist-​Leninist doctrine advocated by Pashukanis and other Soviet jurists, of the “withering away” of law with the advent of socialism, but because it will lose its raison d’etre. Petrażycki’s legal pedagogy was likely an outgrowth of the constitutional-​democratic notion that citizens need to be taught what their rights and duties are and what they must do to enjoy those rights. However, the Russian liberal jurist, Boris Chicherin, criticized Petrażycki arguing that because it relies on coercion, law cannot teach people anything (much less motivate them to love one another), and using it that way would threaten individual freedom. Above all Petrażycki was interested in law as a tool of social improvement. As such, he sought a scientific legal policy that not only considered actual social conditions, such as the level of legal consciousness, but also anticipated people’s reactions to a particular statute or legal practice. A moderate liberal, Petrażycki was not interested in violent revolution but in gradual social progress through legal enactments. This, however, did not prevent him from proposing a practical policy of legislative action that would accelerate the pace of ethical evolution within the framework of representative constitutional government. Thus, rather than rely on unconscious adaptation through intuitive law, Petrażycki exhorted the legislator to purposefully shape official, positive law aimed at attaining altruistic love toward humanity. Two points are noteworthy in this regard. One is that, although both were imbued by Gospel principles and aimed for universal love, Petrażycki’s science of legal policy was founded on a psychologically based notion of law while Tolstoy’s Christian anarchism was founded on God’s law. The other point is that Petrażycki articulated his theory of legal policy nearly 30 years before Roscoe Pound conceptualized lawmaking as a process of social engineering in a politically organized society.

After Petrażycki To a greater extent than other Russian jurists, Petrażycki created successive generations of scholars who devoted a significant part of their studies to the sociological approach to law. Four of these students and followers of Petrażycki

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were Mikhail A. Reisner and the Russian émigrés, Pitirim A. Sorokin, Nicholas S. Timasheff, and Georges Gurvitch. Following the Bolshevik revolution, the communists annulled the laws of Imperial Russia intending to replace them with the revolutionary legal consciousness of the workers and peasants. One of only a few of Petrażycki’s students to remain in Russia after the revolution was constitutional legal scholar and Marxist, M.A. Reisner, who worked for the government department tasked with building a new legal system. Reisner tried to synthesize Petrażycki’s concept of intuitive law with Marxist class law. This led to a class-​focused intuitive theory of law of practical importance to the new legal culture of the Soviet state. Reisner, who was dubbed the “Red Petrażycki” for his efforts, published a booklet in 1908 entitled The Theory of Petrażycki: Marxism and Social Ideology. He noted that while Marx had regarded legal ideology as part of society’s superstructure, Marx had not elaborated on this idea. Reisner defined legal ideology as a mental construct rooted in people’s intuitive revolutionary consciousness that provided them with a sense of truth and justice. This intuitive class consciousness would become the basis of Soviet law. A form of official intuitive law, the 1917 and 1918 government Decrees on Courts mandated that the new courts had to render decisions based on the proletariat’s revolutionary consciousness and revolutionary conscience. In sum, Reisner gave Petrażycki’s doctrine of intuitive law a Marxist expression. By the late 1920s, the psychological theory of law was labeled counterrevolutionary. The most distinguished of Petrażycki’s students at St. Petersburg was Pitirim Sorokin. Completing his studies under the supervision of Kovalevsky and Petrażycki, the latter invited Sorokin to serve as co-​editor of the journal, New Ideas in the Science of Law. Sorokin, who achieved prominence as a sociologist after emigrating to the United States in 1924, developed his mentor’s work in two main respects. First, he extended the imperative-​attributive legal relationship into a three-​fold classification of actions and reactions of the parties of rights and duties. In this regard, Sorokin was more sociologically inclined than Petrażycki, and recognized that law was not only an emotional experience, but that it also had a cultural manifestation expressed in speech, symbolic gestures, written texts, and so on. Also, unlike his teacher, Sorokin saw law’s coercive element as an important factor in the sociology of law. Second, Sorokin continued Petrażycki’s concern with the practical significance of active love, or as Sorokin called it “creative altruism.” As Professor of Sociology at Harvard University, Sorokin created a research center dedicated to investigating how human egoism could be transformed into creative, altruistic love. He also wrote several books exploring this theme. Another sociologist, to make his mark in the United States, was Nicholas Timasheff, who developed a sustained interest in the sociology of law, much of which he owed to his personal and professional relationship with Petrażycki while studying at St. Petersburg. In An Introduction to the Sociology of Law, which appeared in 1939, Timasheff discussed Petrażyck’s ideas only generally. While Timasheff contended more strongly than Petrażycki that law is socially determined, he

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nonetheless considered similar psychological factors as did his former professor, like psychic dispositions, behavior tendencies, and basic sentiments. Also, like Petrażycki, Timasheff advocated for introspection but employed it slightly differently. Timasheff treated introspection as a type of self-​analysis concerning actions relative to law. For example, introspection requires that researchers look within themselves to recognize why they support certain laws and wish to impose them on others. This type of self-​knowledge is analogous to Freud’s psychoanalytic method of investigating the unconscious. Finally, Timasheff ’s characterization of law as “ethico-​imperative coordination” considered, following Petrażycki, law’s intuitive qualities. In 1947, Timasheff wrote a thoughtful piece explaining his mentor’s legal philosophy, and in 1955, he prepared the lengthy introduction to the English translation of Petrażycki’s Law and Morality. Along with Sorokin and Timasheff, another main interpreter of Petrażycki’s ideas was the Russian-​born Georges Gurvitch who fled Russia in 1920. Gurvitch wrote his principal works while in exile, mostly in France. He popularized Petrażycki’s concept of intuitive law and, modifying it somewhat, made it part of his own sociology of law. Approximating Petrażycki’s intuitive law was what Gurvitch called “intuitive spontaneous” social law, which is located in the deepest level of jural reality (or legal consciousness) and is based on the direct understanding of the “collective mind,” which is composed of universally recognized symbols, values, and ideas. Leon Petrażycki has been called the “unrecognized father of the sociology of law,” a designation that applies largely outside the Slavic countries. In Russia, he is celebrated as the founder of the St. Petersburg School of Legal Philosophy and in Poland, he is seen as the forerunner of Polish sociology of law. In the Anglophone world, no full-​length monograph on Petrażycki has appeared since Sociology and Jurisprudence of Leon Petrażycki, nearly half a century ago. Shortly before his death, Petrażycki expressed his wish of making Americans familiar with his work. It is now time to bring his key ideas to the attention of a new generation of English-​ speaking scholars. To this end, this volume introduces Petrażycki’s life and work specifically to an American audience. It is not intended to provide a thorough synopsis of that life and work but rather a reappraisal of some of his views in the context of current advancements. It is hoped that this collection of 12 chapters produced by a panel of international scholars from various social science fields will give readers the information they need to properly evaluate what Petrażycki has bequeathed to contemporary scholarship. Is it also hoped that readers find inspiration in the great Russo-​Polish thinker to develop their own ideas.

Organization of the Volume Leon Petrażycki: Law, Emotions, Society consists of three Parts. Part I—​The Man and His Context—​examines Petrażycki’s ideas in the personal, political, and scholastic circumstances of his time, and those of subsequent thinkers. As such, Aleksejs Petrazickis, in Chapter 1, provides a biographical sketch of Petrażycki, with

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special attention to his formative years. In Chapter 2, Mikhail Antonov contrasts Petrażycki’s liberalism with Georges Gurvitch’s socialism/​anarchism to demonstrate how their political convictions influenced, and were influenced by, their psychological and sociological approaches, respectively. In Chapter 3, Krzysztof Motyka discusses Adam Podgórecki’s endorsement of Petrażycki’s legal theory, which Podgórecki adapted as a way of understanding the political situation in Poland during the Stalinist era. Finally, in Chapter 4, Carol Weisbrod examines the common-​law world’s reception of Law and Morality in 1955, in light of the fact that it was composed from Petrażycki’s civil-​law perspective, and how the book resonates with today’s American narrative jurisprudence. Part II—​Main Concepts and Issues—​considers some of Petrażycki’s fundamental notions and how they can be elaborated and extended to advance knowledge in the social sciences. Relying on his Polish writings, in Chapter 5, Elena V. Timoshina reconstructs Petrażycki’s unfinished sociological project, which she then scrutinizes in relation to the work of Eugen Ehrlich, Max Weber, and Alfred Schütz. In Chapter 6, Lorenzo Passerini Glazel discusses Petrażycki’s analysis of normative experience—​as well as his concept of norm, understood as the content of such an experience. Following this, in Chapter 7, Edoardo Fittipaldi reinterprets imperative-​attributive emotions as forms of anger, thus allowing him to forge connections with psychoanalysis as well as with Lonnie Athens’s radical interactionism. In Chapter 8, Jacek Maria Kurczewski elaborates on the four kinds of law identified by Petrażycki: official-​positive, official-​intuitive, unofficial-​positive, and unofficial-​intuitive. Part III—​ Legacies to the Social Sciences—​ considers the influences that Petrażycki’s works have had on various areas of social studies including sociolegal studies, communication studies, religious studies, and linguistic studies. Beginning with Chapter 9, Andrey V. Polyakov reveals how at the core of Petrażycki’s imperative-​ attributive characterization of law is communication. Oleksandr Merezhko, in Chapter 10, elaborates on Petrażycki’s strictly psychological conception of international law and shows that sociological and legal-​ dogmatic conceptions can be formulated from Petrażycki’s theory. In Chapter 11, Piotr Szymaniec reconstructs Petrażycki’s notion of religion and the idea that the legal components present in religious phenomena are key to distinguishing religion from supernatural beliefs. Lastly, in Chapter 12, Dalibor Sokolović examines how Petrażycki’s ideas can be applied to the area of linguistic studies, using as his example the standardization of Slavic languages.

Acknowledgments I thank Mikhail Antonov, Ivan Brown, Roger Cotterrell, Tom Dolack, Edoardo Fittipaldi, Stephen Kalberg, and Krzysztof Motyka for their comments on improving this introduction and for their support.All errors remaining are my own.

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PART I

The Man and His Context

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1 A BRIEF BIOGRAPHY OF LEON PETRAŻYCKI Aleksejs Petrazickis

Introduction Scores of papers and books have been written on the work of Leon Petrażycki. Information about his family, however, is scarce and largely unknown to many readers. In this chapter, I examine some aspects of Petrażycki’s genealogy and biography that may help to better understand the man and his intellectual achievements.1

Of Noble Birth Leon Petrażycki’s ancestral lineage begins with his great-​g reat-​g reat-​g randfather Alexander, who held the post of stolnik, an honorary court title.2 Michael I, ruler of the Polish–​Lithuanian Commonwealth (reigning between 1669 and 1673), granted the Petrażycy estate to Alexander.3 In 1696, Alexander bequeathed equal parts of the estate to his three sons, one of whom was Andrzei.4 Andrzei himself had two sons, one of whom was Marcin, who also sired four children, including Basyli, grandfather to Leon. During the end of the 18th century, the Partitions of Poland took place and the Petrażycki family and its estates ended up in the territories attributed to Russia. To confirm their rights as nobles in Russia, the Polish nobility (szlachta)5 had to submit documents to the Provisional Assembly of Noble Deputies, showing that they had been awarded estates and acquired the status of nobility. In 1850, the Heraldry Department of the Russian Governing Senate issued a decree to Basyli’s son, Jozef, recognizing the nobility of the Petrażycki family.6 Jozef married Rosalia Czarnocka, who descended from Polish aristocracy on both sides of her family. Jozef and Rosalia settled in Kołłątajewo (in what is DOI: 10.4324/9781351036740-3

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now Belarus) and had four children—​Michalina, Seweryn, Jadwiga, Leon—​the youngest of whom was Leon: on June 5, 1867, in the Czerykow Roman Catholic parish church an infant was baptized with the names Leon Adam …, son of the legitimate couple of the noble Jozef and Rosalia, née Czarnocka, Petrażycki, who was born the same year, the month of April on the seventeenth day at the Hory estate of the Czerykow parish and county.7 The dates given here are according to the Julian calendar, which was in effect at the time. According to the Gregorian calendar, Leon’s date of birth is April 29, contrary to the many different dates that have been proposed by various sources. Furthermore, Petrażycki was not born in the town of Kołłątajewo, as also indicated in several sources, but on the Hory estate. Just prior to Leon’s birth, events transpired that radically affected the lives of millions of Poles, including the Patricia family. In January 1863, the Polish uprising against the Russian Empire began. In the spring, there were rebel groups engaged in guerrilla warfare in Minsk, and later in the Vitebsk province, where the Petrażyckis were living. Russian troops arrived at the Petrażycki household and arrested Jozef, charging him and Rosalia with aiding the rebels. Despite a lack of evidence, Jozef was put in Vitebsk prison. It was only some months later that, owing to Rosalia’s efforts, Jozef was released from prison, but by that time his health had been severely compromised. Shortly before his death, Jozef applied to the Minsk Assembly of Noble Deputies requesting that his children be registered with the noble family name of Petrožicki (with that spelling). Later, in 1877, Leon was added to the register of the Petražickie (“Petrażycki” in the plural spelled in the Russian way) family.8 Leon apparently valued his nobility as years later, when publishing his books in Germany, he did so under the name Leo v. Petražicki.

Education Following Jozef ’s death, Rosalia and her children moved to her mother’s house in Ledniewicze, and a few years later, to Warsaw.The boy Leon, however, remained in Ledniewicze with his grandmother and aunts, who frequently read French books aloud, and thus Leon quickly mastered the language. His facility with languages was evident from childhood.Thus, Leon grew up in a female household where his “friends” were birds and domestic pets (Licki 1985: xxvi). Indeed, when it came time to leave the house in Ledniewicze, besides his aunts and grandmother, he had no one to bid farewell to, except for some dogs, a couple of crows, and a swallow whose broken wing Leon had mended. Leon graduated from the Vitebsk high school with high honors9 and in 1885 enrolled at the University in Kiev where he studied law. While still a student, he

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wrote an essay on matrimonial relations in Roman law and translated, during 1888–​1889, from German into Russian, Julius Baron’s Pandekten. Upon graduating, Petrażycki was sent by the Ministry of Education to the Russian Seminar for Roman Law at the University of Berlin to conduct research under the guidance of Heinrich Dernburg (Kolbinger 2004). At this time, Petrażycki also enrolled in several universities including Heidelberg where he took courses in Roman law (with Ernst Immanuel Bekker) and the history of philosophy (with Kuno Fischer), and in Paris, where he took courses in state law and civil law (with Adhémar Esmein, Charles Lyon-​Caen, and Eugène Garsonnet), psychology (with Théodule-​Armand Ribot), history of religion (with Ernest Renan), and political economy (with Pierre Paul Leroy-​Beaulieu). Furthermore, he visited universities in Strasbourg, Nancy, Munich, Liège, and Vienna to acquaint himself with their teaching methods.10 In 1896, Petrażycki defended his master’s thesis at the University of Kiev on the distribution of the marriage dowry in Roman law. The following year he was appointed lecturer at the University of St. Petersburg, where he would remain for the next 20 years. During that time, he completed his doctoral thesis, Bona Fides in Private Law: The Income Rights of the Possessor in Good Faith (in Russian), which was published in two editions, respectively, in 1897 and 1902[2002].11 He was appointed full professor of Encyclopedia of Law12 and History of Legal Philosophy in 1901. Petrażycki was extremely productive during his St. Petersburg period (1897–​1917), when he published an extraordinary number of books and articles, among which he presented his original theory of law.

Politics and Revolution In 1904, Petrażycki provided legal counsel to Sergei Witte, who later became the Chair of the Council of Ministers of the Russian Empire. He assisted Witte on certain issues concerning the decree of December 12, 1904, which introduced several reforms including freedom of the press and religion, the provision of state insurance for workers, and the granting of greater autonomy to counties and municipalities (Witte 1922: 336). Politically, Petrażycki supported constitutionalism and opposed autocracy (the absolute power of the monarch) and revolutionary lawlessness. He joined the Constitutional Democratic Party (the KaDet Party), which, following the British example, endeavored to replace the autocracy with a constitutional monarchy (see Walicki 1992[1967]). The KaDets sought, among other things, the separation of the legislative, executive, and judicial powers; freedom of speech and religion; the inviolability of private property; and freedom to travel abroad. Petrażycki was elected to the Central Committee of the Constitutional Democratic Party in 1905. Compelled by the mass political and social unrest of that year, the first step toward the formation of a constitutional government was to establish the State

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Duma that was initially conceived as an advisory assembly. Elections took place in the spring of 1906 and Petrażycki was appointed as a representative of the Constitutional Democratic Party. Liberal circles hoped that the Duma would be the driving force of democratic reforms in Russia. The Duma discussed the granting of land to the peasantry, the issue of amnesty for all political prisoners, and the expansion of its own powers. The Tsarist government, however, rejected the Duma’s demands and, after only 72 days, was dissolved by Nicholas II on the pretext that it was inciting unrest among the people. Several members of the Duma protested, considering its disbandment to be illegal, and gathered in Vyborg to draft an appeal advocating civil disobedience. Though Petrażycki initially opposed the Vyborg manifesto, after the local governor threatened the Duma members with a proclamation of martial law, Petrażycki signed the appeal.13 As a result, he was imprisoned for 3 months in 1908, a situation that, under existing legislation, barred him from being elected to Parliament. While living in St. Petersburg, Petrażycki met Maria Karlovna Kalisz, who also descended from a noble Polish family. Maria was the owner of a law bookstore on Nevsky Prospect that Petrażycki had long patronized. The pair married on May 22, 1909, at the Maltese Roman Catholic Church.14 After his release from prison, Petrażycki resumed his research and teaching and was involved with the journals Pravo (“Law”) and Vestnik prava (“Herald of the Law”). Despite his Russian citizenship, in 1912, he was elected to the Academy of Fine Arts in Krakow, which caused a diplomatic incident, because at that time the city belonged to Austria-​Hungary. During the same time, his sister, Jadwiga, was actively participating in the struggle for women’s equality. In 1913, she became a member of the Polish delegation to the Congress of the Federation of Unions for Women’s Equality, which convened in Budapest, and delivered an address at the Congress. Petrażycki supported the women’s equality movement and, as a member of the Duma, had given a speech on women’s equality (Petrażycki 1907, see also Fuszara 2009). In 1915, Petrażycki was reinstated as a full professor at the University of St. Petersburg.15 The following year he participated in the Higher Polish Courses, an educational institution specifically for students with Polish backgrounds, that offered university-​level courses in philosophy, history, literature, law, and sociology. In 1917, after the February revolution, the Provisional Government appointed Petrażycki to the Senate, but he did not serve. Instead, he participated in Poland’s revival through his involvement in the Union of the Army’s Poles (Związek Wojskowych Polaków),16 which was the Polish Army in Russia; in the Liquidation Commission (Likvidacionnaja komissija) in Russia, which sought to preserve Polish assets for a future Polish government; and in the liquidation of Russian administrative structures in Poland (Licki 1985: xlv). In September, as revolutionary events were in full swing, Petrażycki arranged for his manuscripts to be deposited in the library of the University of Petrograd.17 Among those materials was Petrażycki’s long treatise against Kant and Kantianism.18

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The archived collection likely also contained several versions of Petrażycki’s treatise in Sociology (see Chapter 5, in this volume). Life in Russia had become politically untenable for Petrażycki and so in April 1918, he and his wife decamped to Finland and eventually settled in Warsaw. They departed Russia only a couple of months ahead of a decree issued by the Council of People’s Commissars to arrest members of the governing bodies of the Constitutional Democratic Party. The Soviet Government also issued decrees depriving citizens of their property rights, and so Petrażycki was ruined financially. Like millions of Russians, Petrażycki was suddenly deprived of the fruits of his many years of hard work. A further misfortune was that it became impossible for him to retrieve the manuscripts he had deposited at the University of Petrograd. Those materials later disappeared.

Poland In Poland, Petrażycki remained in contact with many of his former students.19 As an example, below is a letter that Petrażycki wrote to Pitirim A. Sorokin on August 25, 1927, who, having been exiled by the Soviet Government in 1922, was living in the United States and teaching sociology at the University of Minnesota: Dear Pitirim, I sincerely thank you for so many things: for your memory of me, your well-​ wishes, your book, and for your dedication which touched me deeply. I’m very pleased with your success. The only concern I have pertains to your extremely abundant literary productivity on a variety of topics and your following various people[’s diverse ideas]. I am afraid that you, as it were, might spoil your talent, by changing it into small coins … For 7 years, not everything has been satisfactory with me. For the past three years, with some remissions, I have been sick with pleurisy. My illness explains both the delay of this letter and my dreadful handwriting. I haven’t succeeded in publishing anything since the revolution. The manuscripts of my unannounced works, rough drafts, and finished materials, as well as my library remained in Russia.This, of course, halted my scientific and literary activities. I would like to publish my “Theory of Law and State” in any of the most common European languages. But it is not yet possible. Could you arrange for the translation of my “Theory” into English? I would not require any honorarium. I would be very grateful if you could tell me what you think in this regard. Sincerely Yours L. Petrażycki20

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Petrażycki’s relatives suffered as well. In 1918, his brother Seweryn was a physician in an area of Ukraine where Spanish flu, cholera, and typhus were rampant. Seweryn never returned to his family. His sisters Michalina and Jadwiga died in 1918 and 1931, respectively. Stanisław, his nephew, was shot down in 1918 while flying over Italy as a fighter pilot for Austria-​Hungary. Another nephew, Adam, a captain in the Polish Army, was killed in 1920 defending Lwów (now Lviv). The support that his wife and nephew, Tadeusz, provided Petrażycki was not enough to help him endure the many misfortunes that had befallen him after the revolution.21 On May 15, 1931, Leon Petrażycki took his own life.22

Notes 1 This chapter is based on documents obtained from numerous archives. I am grateful to Olga Petrožickaja who helped me to obtain much of this information. I am also indebted to the late Todor Podgorac from Kragujevac, Serbia, who always expressed a great interest in the life of Petrażycki and his family (see, in particular, Podgorac et al. 2010). If not taken from official Russian documents, all names here are rendered in the Polish spelling. 2 Nacional’nyi Istoriceskij Arhiv Belarusi (NIAB), f.319, op.2, d.2469. 3 NIAB, f.1732, op.1, d.9, l.271. 4 NIAB, f.1727 op.1, d.31, l.520. 5 It should be noted that in Poland the szlachta made up 8% of the overall population, whereas in Russia, the Russian nobility (dvorianstvo), amounted to less than 1%. After the Polish partitions, there were more Polish nobles in Russia than Russian ones.Thus, the Russian government applied all possible means to decrease the size of Polish nobles registered as Russian nobles (dvoriane). Many Polish families had lost their documents due to the Napoleonic wars and as a result could not confirm their nobility. 6 NIAB, f.319, op.2, d.2469, l.220. 7 NIAB, f.2379, op.1, 17, l.5. 8 NIAB, f.319, op.2, d.2469, l.403. 9 NIAB, f.2554, op.1, d.456, l. 60. 10 Institut russkoj literatury (Puškinskij Dom) rossijskoj Akademii nauk (IRLI RAN), f.377, op.7, d.2805.This is a curriculum vitae prepared by Petrażycki himself after 1911. 11 This book was based on a book Petrażycki published in Germany (Petrażycki 1892) while attending the Russian Seminar for Roman Law in Berlin (see above). 12 The concept of the Encyclopedia of Law (Ėnziklopedija prava) roughly corresponds to the Anglo-Saxon notion of jurisprudence. 13 IRLI RAN, f.377, op.7, d.2805. 14 Central’nyi Gosudarstvennyi Istoriceskij Arhiv, f.182, op.4, d.249, s.41. 15 After being appointed to the Duma, Petrażycki became a supernumerary professor. However, owing to his imprisonment after the Duma’s dissolution, he was not immediately reinstated as a professor. 16 At the time of the Russian empire, this was a legal organization within the Russian army. After the Revolution, there were two factions within it: one aiming at consolidating Polish troops for a further struggle for independence and another for fighting alongside the Russians in the First World War.

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17 Rossijskij Gosudarstvennyi Istoriceskij Arhiv, f.1102, op.3, d.86, s.19. 18 In a series of lectures that he gave in Warsaw between 1920 and 1923, Petrażycki presented “a short exposition of the main ideas in that extensive work as preserved in [his] memory” (1939[1920–​1923]: 15). 19 On why Petrażycki seems not have remained in contact with Georges Gurvitch, see Chapter 2 in this volume. 20 Centr “Nasledie” imeni Pitirima Sorokina (http://​rksor​okin​ctr.org/​index.php/​2011-​ 06-​06-​05-​39-​19.html?func=​det​ail&id=​475, accessed February 16, 2017). This letter has been published in Sorokin (2009: 106). 21 On Tadeusz’s tragic death, see Merezhko (2016: 129, fn. 302). 22 On Petrażycki’s death, see also Merezhko (2012).

References Fuszara, Małgorzata, 2009. Leon Petrażycki’s Theory and Women’s Rights. Societas/​ Communitas, 1, 7: 37–​45. Kolbinger, Florian, 2004. Im Schleppsein Europas? Das russische Seminar für römisches Recht bei der juristische Fakultät der Universität Berlin in den Jahren 1887–​1896. Frankfurt on the Main:Vittorio Klostermann. Licki, Jerzy, 1985. Życie i twórczość Leona Petrażyckiego. In Andrzej Kojder (ed.). O nauce, prawie i moralności. Warsaw: PWN. Merezhko, Aleksandr A., 2012. The Mystery of a Legal Philosopher’s Death. Journal of Comparative Law, 7, 1: 108–​114. Merezhko, Aleksandr A., 2016. Psihologičeskaja škola prava L. I. Petražickogo: istoki, soderžanija, vlijanie. Odessa: Feniks. Petrażycki, Leon, 1892. Die Fruchtverteilung beim Wechsel der Nutzungsberechtigten. Vom Standpunkt des positives Rechts und Gesetzgebung. Drei civilrechtliche Abhandlungen. Berlin: Muller. Petrażycki, Leon, 1897. Bona fides v grandanskom prave. Prava dobrosovestnogo vladel’ca na dohody s toček zrenija dogmy i politiki graždanskogo prava. 1st ed. St. Petersburg: Tipografija M.M. Stasjuleviča. Petrażycki, Leon, 1902[2002]. Bona fides v grandanskom prave. Prava dobrosovestnogo vladel’ca na dohody s toček zrenija dogmy i politiki graždanskogo prava. Reprint of the 2nd ed. revised by its author. Moscow: Statut. Petrażycki, Leon, 1907. Reč’ professora L.I. Petražickogo deputata 1-​j gosudarstvennoj dumy. St. Petersburg: Tip. B.M.Vol’fa. Petrażycki, Leon, 1939[1920–​1923]. Szkice Filozoficzne. O tak zwanej metodzie krytycznej oraz o metafizyce i filozofii praktycznej Kanta. Warsaw: Nakładem Towarzystwa im. Leona Petrażyckiego. Podgorac, Todor, Andrej Kojder, Aleksej Petrazickis, 2010. Leon Petražicki –​Delo i Rodoslov. Kragujevac: Skver. Sorokin, Pitirim A. (Pavel P. Krotov ed.), 2009. Izbrannaya perepiska. Vologda & Syktyvkar: Drevnosti Severa. Witte, Sergei J., 1922. Carstvovanie Nikolaja Vtorogo. Berlin: Slovo. Walicki, Andrzej, 1992[1967]. Legal Philosophies of Russian Liberalism. Notre Dame, IN: University of Notre Dame Press.

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2 LEON PETRAŻYCKI AND GEORGES GURVITCH Normative Facts as a Litmus Test for Political Convictions* Mikhail Antonov

Introduction The idea of normative facts is one of the necessary premises of every pluralist theory of law, insofar as legal pluralism implies an unlimited number of sources of normativity1 (foyers normatifs, “normative cradles”) in society (Terré 2005). This means that people are not necessarily bound by heteronomous sources of normativity pre-​established by an external order, a supreme being, or factual forces. Rather, people create normativity in the course of their normal activities, adapting these activities to different frameworks (institutional, natural, intellectual, etc.), so that this normalcy transforms itself into legal orders. The very notion of law is relative, given that in different communities various things may count as “law,” depending on how normalcy is understood and formulated. To take a regularly reproduced behavior as a primary fact and to explain this fact without reference to any metaphysical2 conception or particular social institutions is what characterizes the “realist” perspective adopted by a number of legal scholars in the first decades of the 20th century. This “experimental” or “anti-​metaphysical” principle was common to Roscoe Pound and the various legal realists in the United States, to Axel Hägerström and his followers in Sweden, and to Leon Petrażycki and his school, both in Russia and in exile. All these scholars, diverging in details, affirmed legal pluralism and asserted that the sources of legal normativity (generally perceived of as social normalcy) are found in people’s psychological attitudes.3 It may be argued that such a pluralist understanding of law is based on a liberal interpretation of rights and favors greatly limiting collective control over individual freedoms. Needless to say, legal pluralism dethrones the state as the presumed center of the life of law and strips it of its apparently unlimited sovereign powers DOI: 10.4324/9781351036740-4

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to create and apply law. However, the history of legal thought provides myriad examples that do not fit this one-​dimensional view. Cases in point are provided by two prominent legal philosophers, Leon Petrażycki and Georges Gurvitch, whose works illustrate the intellectual heights reached at the time of the so-​called Russian Silver Age during the first decades of the 20th century. Both Petrażycki and Gurvitch were staunch proponents of different forms of legal pluralism. They included into the notion of “law” a much wider range of phenomena than did most of the legal conceptions of their time. Indeed, these two thinkers were often criticized for failing to clearly distinguish between law and other social control mechanisms. For many legal positivists, such lack of distinction constitutes one of the biggest heresies about the law, both from a theoretical and a practical viewpoint. This is why Petrażycki and Gurvitch were virulently attacked for their attempts to broaden or even remove all conceptual boundaries to the term “law.” These attempts could potentially undermine the idea of the rule-​of-​law (Rechtsstaat) as understood by the positivist legal doctrines prevalent during the first half of the 20th century (Antonov and Polyakov 2012). Both Petrażycki and Gurvitch held that there are indelible sociopsychological limits that prevent the state from total legal regulation and that the law’s binding force4 cannot be overruled by sovereign powers, ideological constructs, or the will of the people. For these thinkers, state–​law regulations have only a secondary significance, given that their authority and force emanate from the human psyche. Numerous legal orders (systems of regulation) may simultaneously exist in the social environment, and enable people to become authors of their law, given that law ultimately derives its binding force either from individual emotions (Petrażycki) or from collective acts of recognition (Gurvitch). This pluralist description of law is at the very core of their legal conceptions and thus shaped their ideas about the formal sources of law’s normativity. However, despite proceeding from the same legal-​pluralist idea, Petrażycki and Gurvitch arrived at different interpretations of this idea and its political consequences. Petrażycki’s Civilpolitik and his later notions about legal policy had a clear liberal connotation (Kojder 1994), while Gurvitch’s political ideals were evidently nourished by the philosophies of Saint-​Simon, Marx, and Proudhon, who were considered by Karl Popper to be anti-​liberal thinkers and “enemies of the open society” (Popper 2013[1945]). A comparative analysis of Petrażycki’s and Gurvitch’s legal theories in reference to the question of the sources of normativity also reveals this contentious political dimension. In attempting to uncover Georges Gurvitch’s connections with Leon Petrażycki after both emigrated from Soviet Russia, I was struck by the absence of any mention about their relationship in Gurvitch’s correspondence. On the one hand, Gurvitch in his lectures and writings incessantly praised Petrażycki as one of the best legal minds of the time and singled out his legal theory as contributing important insights for contemporary social science (e.g., Gurvitch

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1931a: 279–​294; Gurvitch 1931b; Gurvitch 1931c).5 On the other hand, he did not correspond with Petrażycki and never mentioned Petrażycki in his letters (available to me). Likewise, Gurvitch made no effort to meet with his mentor, or even to communicate with him, after they both had gone into exile.6 Such contacts could have been easily arranged, especially in the first years of his emigration, until 1925, when Gurvitch was living in Berlin and Prague, not far from Warsaw where Petrażycki ultimately settled in 1918. Before the 1917 Revolution,7 Gurvitch, among other young talented law students, attended Petrażycki’s seminars in Petrograd and participated in Petrażycki’s circle. Moreover, in 1917, he wrote and defended his master’s thesis on Rousseau’s “Declaration of Rights” under Petrażycki’s supervision.8 It may be that, if Petrażycki’s archives had not been lost in the fires during the bombing of Warsaw in 1944, correspondence between these two thinkers would have been discovered, or that there are other, as yet, unknown sources of such communication. But, if Petrażycki and Gurvitch’s personal relationship was severed after the Revolution, what could be the reasons for that? As I have hinted above, one of the plausible answers may have to do with their political differences: Petrażycki was a steadfast liberal (Walicki 1987: 213–​290),9 whereas Gurvitch always pledged his fidelity to socialism and overtly sympathized with anarchism.10 Petrażycki was resolutely opposed to the Bolshevik revolution, whereas Gurvitch likely welcomed it. To this should be added Gurvitch’s leftist enthusiasm and his passionate character, which put him in conflict with those on the right wing and center of the political spectrum.11 It was his uncompromising political temperament and leftist ideas that finally drove Gurvitch out of the Russian expat communities (Vishniak 1957: 106) and that excluded him from the “horde” of French lawyers and sociologists (Gurvitch 1969[1958]). Gurvitch’s anti-​liberal penchant and his orientation toward value experiences may explain his determination to neglect those aspects of Petrażycki’s legal conception that are rooted in individualism.12 As such, the question of the sources of legal normativity might be crucial in understanding Gurvitch’s profound disagreement with Petrażycki’s contention that legal experience is of a purely individual character.

Petrażycki’s and Gurvitch’s Political Propensities and the 1917 Revolution Petrażycki and Gurvitch were interested observers and even, to some extent, active participants in the political upheavals that took place in Russia during the first two decades of the 20th century. In 1906, Petrażycki was elected to the Russian parliament (the First Duma) as a deputy from the Constitutional Democratic Party (the KaDet Party) and even spent three months in prison for signing the 1906 Vyborg manifesto. For several years, Petrażycki coedited the first Russian liberal newspaper Pravo (“Law”/​“Right”) that agitated for the principle of legality, for civil

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liberties, and for individual freedoms in the Russian Empire.13 His colleague from the KaDet Party, Ariadna Tyrkova, described Petrażycki’s political engagement of these years as follows: The Russian liberal movement fought for the rule of law, and the statesman Petrażycki thought that it was his duty to participate in this movement … This movement included into its program the idea of Polish autonomy, and the Pole Petrażycki felt that it was his obligation to take part in this movement; especially, given that the KaDet understanding of law was close and intimate to him. Tyrkova-​Williams 2007[1952]: 264 After the February Revolution, the Provisional Government (its Chairman Alexander Kerensky being a former student of Petrażycki’s14) appointed him to the Supreme Court. After the Government collapsed a few months later, Petrażycki gave up on reaching a compromise between his liberal ideas and the Bolsheviks’ ideology15 and fled the country in 1918 (Timasheff 2011[1955]: xxix ff.). Despite being only 24 years old, Gurvitch also tried to take a stand in the revolutionary events, although he was not as prominent on the Russian political scene as his academic mentor. In his “Intellectual Itinerary,” Gurvitch picturesquely describes his antipathies to both autocracy and liberalism and presents the socialist political ideals he formulated while a student at the Riga lyceum and at the University of Petrograd (Gurvitch 1969[1958]: iii). In other sources, he mentions his active support for the self-​government structures, or “soviets,” that appeared in the days of the February Revolution,16 his propaganda speeches before Petrograd workers in 1917, and other involvements in revolutionary events (Gurvitch 1967: 96).17 His passion for the ideals of self-​government was so strong that initially he supported the Bolsheviks and their slogan “All Power to the Soviets” (Gurvitch 1918b). But he was soon disillusioned by the Bolshevik policies that progressively eroded self-​government in favor of a new autocracy (Gurvitch 1962), and in 1920 he departed from Soviet Russia. Both Petrażycki and Gurvitch formulated their key theoretical ideas about law before their emigration from Russia, and it is likely that their political engagements indelibly influenced their conceptualizations. Petrażycki’s theory of law focuses on personal freedom, conferring this value onto the individual and her emotions.18 Gurvitch in his theoretical thinking prized collective action and self-​organization and sought a balance between the individual and the social in accordance with socialist and anarchist principles. Accordingly, Gurvitch justified the maximum legal freedom for individuals.19 He also stressed the role of collective forces that spontaneously create frameworks of legal regulation and impose them on people—​an idea not entirely compatible with liberalism. Petrażycki and Gurvitch seemingly shared the same core ideas about law (its imperative-​ attributive character, its social and psychological nature, legal pluralism, and so on)

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but had major disagreements that can, in part, be explained by their respective political sympathies. Such considerations do not fully explain the presumed cleavage between these two scholars.20 Without undertaking a full-​fledged comparative analysis of Petrażycki’s and Gurvitch’s legal philosophies, I here focus on their conceptual frameworks to explain the sources of their notion of legal normativity (normative facts).These frameworks clearly reflect their political sympathies and reveal certain ideological presuppositions about social order and individual freedom—​factors that may account for a potential rift between the two men.

Petrażycki’s Conception of Normative Facts When conceptualizing legal phenomena, Petrażycki first introduced the concept of intuitive law, understood as imperative-​attributive experiences that the individual regards as not requiring any justification. But because intuitive law is completely autonomous, it cannot explain the everyday experiences of heteronomous normative constraints. Thus, Petrażycki incorporated into his conception the experience of heteronomy and the psychological force that authorized texts, customs, or signs, have over people’s minds, as well as the behavioral coordination those texts, customs, or signs, produce. This is why, he introduced the concept of normative fact, along with that of positive law, defined as experiences or convictions based on corresponding normative facts. To be sure, Petrażycki held that the bindingness of heteronomous normative facts is ultimately a subjective phenomenon, that is, an emotional projection, or “phantasm,”21 and that the external existence of normative facts is neither a sufficient nor a necessary condition for them to affect individuals’ behaviors. Nonetheless, he admitted that emotions may gradually converge, “get crystallized,” and fix some facts as reference points to guide human behavior, which facts thereby become “normative facts.” In other words, people see those facts as the authoritative endorsement of their imperative-​attributive emotions, thereby objectivizing them. From this standpoint, normative facts result from the emotional feedback they receive from the human psyche. Thus, Petrażycki argues that even in the case of positive rights or obligations, their binding force ultimately resides in individual minds. Petrażycki conceptualized legal phenomena as the psychical couplings of representations/​perceptions of actions and imperative-​attributive emotions. In turn, he maintained that imperative-​attributive emotions generate projections. In other words, because of their imperative-​attributive emotions, individuals may project onto themselves or others certain legal rights and duties. As such, Petrażycki places individuality at the center of a legal universe where individual freedom is pervasive: not only do individuals create their rights and duties, they also mentally construct the bearers of those rights and duties.22 Apparently, this conception

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fitted well into the liberal political program Petrażycki supported in the first two decades of the 20th century (see Meduševskij 2014: 139–​167; Walicki 1987). Many of Petrażycki’s contemporaries considered his conception as counterintuitive, referring to his notorious examples of agreements with wood-​goblins or the devil, which Petrażycki regarded as legally binding for those who believe in them, or to his concept of lovers’ or children’s law, which he regarded as full-​fledged legal phenomena. Nikolai I. Palienko, a Russian jurist, insisted that Petrażycki’s eschewal of legal objectivity in favor of subjectivism made him “turn towards metaphysical philosophy in his quest for answers to the ultimate questions” (Palienko 1908: 197). In a similar vein, Boris Chicherin suggested that Petrażycki’s ideas are based on objective values with a religious connotation (Chicherin 1998[1900]: 23). As early as 1902, Pavel Novgorodtsev argued that Petrażycki’s legal theory would need to develop into an ethical theory in order to support Petrażycki’s beliefs about the primacy of certain values and social ideals (Novgorodtsev 1902: 279–​280). Some years later, Iosif Pokrovskij asserted that Petrażycki could avoid irrationalism only by moving toward collective psychology (Pokrovskij 1915). Gurvitch was likely familiar with these critiques, because it is in reference to them that he endeavored to reconsider his mentor’s legal theory. Petrażycki failed to recognize that law23 is not only about individual emotions but also about social conventions that are perceived as objective by many individuals at the same time. Petrażycki’s idea of normative facts was aimed at explaining how ethical coordination (where ethical was used by him as a general term for both legal and moral) was possible. For him, various texts and phenomena may serve as normative facts. These include statutory acts, as well as customs, judicial and non-​judicial precedents, textbooks, holy books, and actions and quotations from prophets. In keeping with the tenets of legal pluralism, Petrażycki drew up a non-​exhaustive typology of normative facts and implied that which of them are actually experienced as binding depends on the historical configurations of social orders. Thus, he abandons the approach conventionally accepted in legal science, according to which the definitions of law are based on “sources of law,” or normative facts that have a binding force that override other normative mechanisms that also coordinate human behavior. Petrażycki saw normative facts as external facts that are objects of belief and that act as conscious causes of legal (or, more generally, normative) convictions. Since Petrażycki asserted that in most cases those beliefs are evoked by really existing external facts, according to him, normative facts play a significant—​ though imperfect—​role in unifying legal convictions.24 This is chiefly how Petrażycki attempted to solve the problem of the functioning of the machinery of law. When describing how legal emotions affect human behavior, Petrażycki distinguished between (representations25 of) actions, addressees, legal hypotheses,26 and normative facts, so that, for him, law is a fact in two senses: (1) as a natural phenomenon taking place in time and space, and (2) as an emotional experience of reciprocal rights and duties. Normative facts allow subjects to connect their

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rights and obligations with the rules extracted from normative facts which others also accept as authoritative sources about rights and obligations. According to Petrażycki, imperative-​attributive emotions are not always connected to normative facts. Rights and legal obligations, and so also law, may exist at a non-​positive level (“intuitive law”) without reference to normative facts. In Petrażycki’s theory, normative facts are not a necessary condition of law; they only serve for distinguishing between intuitive and positive law (Petrażycki 2011[1909–​1910]: 57ff.).

Gurvitch’s Conception of Normative Facts Gurvitch criticized Petrażycki’s legal conception mainly for its excessive reliance on individual emotions. Accordingly, it describes law without reference to the social structure in which it functions. For Gurvitch, normative facts are all those social phenomena that produce social integration, and in this sense his interpretation of normative facts is similar to Petrażycki’s. Though both saw those facts as reference points, for Petrażycki they are addressed by individuals’ psychological experiences, while for Gurvitch they are addressed by individuals’ collective experience. Gurvitch also accepted the Petrażyckian distinction between positive and intuitive law. But, for Petrażycki, normative facts largely coincide with “sources of law.”27 Instead, for Gurvitch, normative facts involve the means by which individual and collective values are converted into transpersonal values (among which are the values of justice). Thus, for Gurvitch, the “sources of law” are merely “pre-​established means” for describing normative facts. Gurvitch’s conception of normative facts is intertwined with his multilevel vision of social reality. For him, there are various levels of social life: from morphology and organized structures to social symbols, collective ideas, and collective mentality. The deepest level of collective mentality, the “noetic mind,” spontaneously produces ideas that acquire normative value through collective recognition and give rise to different forms of sociality. Every social community is a social order that cannot exist without certain basic rules. It is these rules that underlie any system of societal regulation, including law. But the social order is not a social fact in the Durkheimian sense. People are interconnected because they share certain values that they recognize as constitutive of their social “totality.” It is not necessarily a question of intellectual recognition, given that these constitutive acts of recognition of transpersonal values are produced intuitively, through collective intuition. Gurvitch regards these constitutive acts as normative facts and defines them as “the collective acts of recognizing spiritual values as … embodied in social facts in which they are realized” (Gurvitch 1947: 41). Each normative fact establishes “the ways of being bound to the whole and by the whole” (ibid.: 156), or what Gurvitch calls “forms of sociability” that combine spontaneity and organization in different proportions. These forms of sociability construct a social order on the basis of recognized social values and provide a primary normative framework for human behavior. Gurvitch opined that solidarity

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lies at the foundation of normative regulation and that it is from this solidarity that those primary normative facts arise, thus making it possible for people to share collective values and maintain social solidarity and cohesion.28 As such, some values become normative facts through collective acts of recognition or, in other words, are transformed into societal patterns of behavior.They are not imperatives, but rather factual and ideational constraints that bind individuals’ behavior as a result of collective recognition. This proposal raises several questions: If all members in a social totality are engaged in an “immediate experience,” is this experience reproduced continually or is it produced only at the beginning of this totality? How do individual intuitions become collective acts of recognition? How do we explain deviance? Gurvitch avoided these and other thorny questions by claiming that he does not consider individuality and volitional acts as primary elements to legal experience. For him, such elements are constituted by forms of sociability, which he characterized as “social electrons” in interpersonal communication. By introducing the idea of “forms of sociability,” Gurvitch intended that individuality be included into the social totality through relations of coordination, fusion, or communion. These three types of social relations are dependent on the role rational choices play in constructing social structures. Rational choices dominate in the relations of coordination (interdependence) but have a lesser impact when individuality is fused with social totality. However, rational choices have no significance when individuals merge into communion (vseedinstvo, or “All-​ Unity”29) and no longer regard themselves as separate from others. For Gurvitch, communion reveals the deepest level of social reality—​that of collective mentality. He formulates a “phenomenological”30 conceptualization of legal reality as composed of multiple levels and forms of sociability, each of which reveals a particular aspect of law’s sociopsychological reality. He draws an exceedingly complex picture of more than 20 combinations of these forms of sociality, regroups their combinations as to each level of social reality and to each type of law (social law, official law, etc.), and finally arrives at more than 100 subcategories of law. According to Gurvitch, the only way to verify his conceptual scheme was to revert to immediate jural experiences that amount to a sort of Wesensschau (“intuition of essences”), as Gurvitch puts it, a phenomenological reduction. This experience: consists in collective acts of recognizing spiritual values as incarnated, embodied in social facts in which they are realized. It is that incarnation and realization of values in facts which is the most profound datum of jural experience. Moreover, the most immediate data of jural experience are “normative facts” and the “justice” which governs them. These two data are closely interlinked and represent two abstract aspects of the same datum. Jural immediate experience as an act of recognition is essentially intermediate between an emotional-​volitional experience of values and an intellectual experience of logical ideas. It diminishes the direct warmth of

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the experience of values by interposing the coolness of intelligence in order to reconcile them. Gurvitch 1947: 41–​42 Through such convoluted conceptual schemes, Gurvitch removes individuality and free choice from the center of the legal universe and departs from the classical liberal philosophy that prized individual freedom as a key element of law. Indeed, he vehemently criticizes the classical liberal idea of law and reveals the shortcomings and mistakes of the individualist and rationalist approaches to law (Gurvitch 1932). In his overtly anti-​individualist approach, Gurvitch calls for new forms of legal regulation where spontaneously organized groups will replace the state, and where collective acts of recognition will reconcile collective and individual values, enabling people to create the law they will have to obey. For Gurvitch, the idea of normative facts also serves as a main counterargument to liberal individualism. He criticizes “individual law,” by which he means law based on an individualist understanding of rights, and contrasts it to “social law,” which he sees as the way to integrate people into objective totalities (totalités objectives, Gurvitch 1932). Social law, as the deepest level of legal regulation,“make[s]‌the subjects it addresses directly participate in the social whole, which in its turn directly participates in the legal relations of its members” (Gurvitch 2009[1944]: 75). Gurvitch justifies his vision of democracy by interpreting this social whole as “an organic whole which finds in itself the principle of its life …, and which determines itself by itself ” (Gurvitch 1929: 407, 409). He counterbalances this holist view with his idea of social law, where individual and collective interests are balanced, that is, a law where “the whole does not transcend [those interests], and does not therefore stand to them as an external object or as a superior personality” (Gurvitch 1932: 10). This reveals, in Gurvitch’s opinion, the very idea of justice as the reconciliation of “the real conflicts between transpersonal and personal values” that leads to “the veritable synthesis in an immanent totality of the one and the multiple, of the individual and the universal” (ibid.: 17). Like Petrażycki, Gurvitch held that the validity of legal rules is to be sought in the human psyche. He accepts the Petrażyckian idea that imperative-​attributive emotions make it possible to distinguish law from morality. However, Gurvitch focuses not on individual emotions and representations, but on the most sublime aspects of the psyche, which, according to him, contain collective intuitions about fundamental societal values. These collective intuitions do not form a “collective mind” that stands above individual minds.31 They are present in individual minds and explain why individuals are at the same time separate actors and parts of social totalities. The sublime dimension of the human psyche capable of retaining collectively recognized values Gurvitch referred to as “noetic mind,” which he tried to explain in the terms of “reciprocity of perspectives.” In the legal sphere, the noetic mind appears when people acknowledge that there is something beyond their emotions,

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namely, a shared sense of justice. Each community produces such an experience when it collectively implements what its members consider to be just. In their spontaneous interactions, they strive to carry out their lives in accordance with what they experience to be “justice.” At a certain point they recognize some rules as just, and therefore binding. Along with individual psychological emotions, such a recognition involves what Petrażycki, and Gabriel Tarde before him, called “psychological contagion.”32 Gurvitch maintains that law first appears in societies exactly at the point of such a collective recognition. The acts of recognition bring isolated individuals together into a social “totality” and lead to the formation of stable collective expectations about the mutual behavior of its members in the light of what is collectively and individually perceived as just. Consequently, these expectations make social interactions less spontaneous and the ideas of justice start crystallizing in the noetic mind that encompasses all individual minds into one psychological totality.33 It is this collective immediate experience of implementing justice that Gurvitch regards as the supreme source of legal normativity and the basis of legal regulation in every society. Legal rules, texts, procedures, and the other technical means of legal science are created afterwards, when people, after having intuitively formed general ideas of justice, collectively and individually implement those ideas in the form of propositions or institutions. Thus, the “integral legal experience” (Gurvitch 1935) incorporates individuals into the web of regulated social interactions. However, this theory leaves little room for individuality and its freedom.34 In this vein, in the 1930s, Gurvitch endorses (albeit with caveats) the solidarist conceptions of law (Gurvitch 1932: 567 ff.) and in his post-​World War II writings he praises “decentralized collectivism” and condemns “liberal technocracy” (Gurvitch 1949).

Conclusion I have intentionally offered simple and abbreviated interpretations of Petrażycki’s and Gurvitch’s conceptions given that my goal was not to provide a comprehensive analysis, but to underscore a few connections between their theoretical and political views. Gurvitch endeavored to balance the values of individuality and collectivity and accordingly considered justice and rights in the terms of a balance between the collective and the individual. This attempt, notwithstanding Gurvitch’s sociology, demonstrated, perhaps contrary to his intentions, an evident proclivity to the collective, subjugating individuals and their opinions to the social. After completing his master’s thesis on Rousseau’s Declaration of Rights, Gurvitch remained obsessed with what the French philosopher considered to be the main problem of political philosophy,35 and the solution he found was similar to that of Rousseau: to subdue individuality to collective choices and, if necessary, to force individuals to be free.

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As for Petrażycki, he endorsed some collective and social dimensions in legal regulation that informed his ideas about legal policy as well as about social and psychological adaptation.36 He was not an advocate of solipsism37 or individualism but evidently favored the individual over the social.38 The main inspirations of Petrażycki’s legal theory were clearly liberal, and it was perhaps the failure of liberal ideals in Russia, Poland, and elsewhere that finally brought him to suicide in 1931.39 Both Gurvitch and Petrażycki contended that the foundation of any social order lies in the human psyche and not in heterogeneous social facts or institutions. This psychological perspective implied two principal theses. First, that facts have binding force only as long as they are felt as compulsory by people. In this sense, “feeling” could mean either an emotional-​attributive relation in a person’s psyche that he feels toward (or between) others, or else an intuitive collective recognition of societal values. Second, people are able, through empathy and intuition, to create legal rules that bind their behavior independently of any organized social control, including the state and its coercive machinery. It stands to reason that certain facts exert normative influence on individuals who learn from social experience to consider such facts as authoritative indications about proper behavior. Both thinkers admitted to these and called them “normative facts,” to which they attributed an important role in their respective explanatory schemes about the machinery of law. Even if Petrażycki and Gurvitch had different conceptions about the forms (“normative facts”) through which psychological experience creates authoritative references to what is recognized as legally binding, the gulf between the two legal thinkers is not unbridgeable. Perhaps, Petrażycki’s belief in the perfect congruence between his adequacy theory, his individualistic legal psychology, and his liberal ideas prevented him from developing the sociological aspects of his legal theory. Perhaps, he feared arriving at a more collectivist and less liberal understanding of law, which turned out to be the case with Gurvitch. These sociological insights were clearly discernible in Petrażycki’s theory during his St. Petersburg period and were even more fully elaborated in his Warsaw period (Timoshina 2012; see also Podgórecki 1980–​1981). But Petrażycki did not reconsider his legal theory or revise his conception of normative facts in the light of those sociological insights, despite the evident inconsistencies (Timoshina 2014: 83–​86). This attempt was undertaken by Gurvitch who was not able to overcome the profound discrepancies between the psychological and sociological accounts of law present in his mentor’s legal theory. However, Gurvitch’s philosophical insights led him to another interpretation of normative facts, one inspired by his leftist political convictions.

Notes * The author acknowledges the assistance and gracious hospitality he received from the Woodrow Wilson International Center for Scholars (Washington, DC) where he wrote this chapter during his Georges F. Kennan Scholarship. He also owes special thanks to Edoardo Fittipaldi,William Pomeranz, and A. Javier Treviño for their valuable suggestions and comments on an earlier draft. Any errors that might remain are the author’s sole responsibility.

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1 For the sake of brevity, in this chapter, I consider the term “normativity” as synonymous with “validity” and “binding force.” Admittedly, in other respects, such terminology can lead to serious confusions, as in the debates between Hans Kelsen and Alf Ross. I believe that in examining what Petrażycki and Gurvitch meant by “normative facts” this analytical distinction of terms has no crucial relevance. 2 In this context, the term “metaphysical” implies a reference to all that is not based on immediate experience. 3 Here we cannot delve into whether the legal ideas of Petrażycki and his followers can be considered part of realist jurisprudence; whether the differences between the Petrażyckian school, the Scandinavian, and the American realists are significant enough to exclude merging them into one theoretical movement; or whether Petrażycki can be considered a “post-​realist legal scholar” (Peczenik 1975). On these issues, see Opałek (1961) and Fittipaldi (2016). 4 I use the term “binding force” as a shortcut for the organized pressure exerted by an external authority in directing social behavior. I am aware of the difficulties that this term may involve for realist jurisprudence (see Olivecrona 1948) and of the term’s ambiguity in Petrażycki’s legal theory (nonetheless, binding force was used in the 1955 English compilation of Petrażycki’s main works, reprinted in Petrażycki 2011[1909–​1910]). 5 Further, in March 1932, Gurvitch lectured before Russian emigrants in Paris on “The Legal Theory of Leon Petrażycki” (Mnukhin et al. 1995: 287). 6 This is all the more strange when we consider that Timasheff, Sorokin, Guins, Laserson, and other legal thinkers from Petrażycki’s circle continued to have contact with him in exile. On August 25, 1927, Petrażycki wrote to Pitirim A. Sorokin a letter of gratitude for his support (Sorokin 2009: 106). Although he resided in China, Georges Guins also paid a visit to his mentor as a sign of his dedication and respect for him (Guins 1966: 294–​295). 7 There were two revolutions in 1917: the February Revolution conducted by liberals and the October Revolution that was carried out by the Bolsheviks. Hereafter, when speaking of “the 1917 Revolution” I will be referring to both revolutions, unless otherwise specified. 8 Before its publication in 1918, Gurvitch had revised his master’s thesis written under Petrażycki’s supervision adding analyses that Petrażycki probably would not have agreed with (see Gurvitch 1917 and Gurvitch 1918a). Contrary to the conventional interpretation that Rousseau was an apologist for anti-​individualism, Gurvitch asserted that individuals do not abandon their rights when subjecting themselves to the volonté générale but gain their rights only after recognizing this volonté générale and thereby acquire their political freedom. In this light, “Rousseau is not a partisan of absolutism, and therefore he does not discard individual inalienable natural rights, but, on the contrary, he is an ardent and coherent defender of those rights” (Gurvitch 1918a: 21). Gurvitch sees the volonté générale as the supreme source of normativity in democratic societies, a notion that might have been ridiculed by Petrażycki as a phantasm, projection, or a form of naive constructivism (on naive constructivism, see Chapter 5 in this volume). 9 It could be objected that Petrażycki’s ultimate ideal was socialism. He believed that culture progresses toward socialism, which he interpreted as a social order free from coercion and based on the principle of love. However, for Petrażycki socialism would occur in the remote future. It had a clear eschatological dimension, with no connection to the political realities of the time. On Petrażycki’s liberalism, see his praise of the educative effects of private property and inheritance (Petrażycki 2010[1913]: 587).

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10 After his emigration to France, Gurvitch published a number of articles in Sovremennye zapiski and other Russian leftist emigrant journals, where he expressed his sympathies with socialism (see Antonov and Berthold 2006). Some Marxist authors have remarked on Gurvitch’s leftist leanings (Swedberg 1978). Gurvitch’s French students and followers have also stressed his socialist proclivities and the anarchist orientation of his work (e.g., Duvignaud 1970: 38). 11 On Gurvitch’s political engagement in his relations with legal philosophers in the 1930s, see Antonov (2011). 12 A deeper philosophical basis for this falling out between Gurvitch and his mentor may lie in their diverging Weltanschauungen. Gurvitch saw in Petrażycki’s conception of law and his adequacy theory forms of Cartesian “logocentrism” and unbridled rationalism. Gurvitch instead favored an intuitivist paradigm for law, which drew inspiration from Russian religious philosophy (Antonov 2010). 13 It is noteworthy that—​unlike his friends from the Petrażycki circle, Sorokin, Guins, and Timasheff—​Gurvitch did not publish anything in this newspaper. 14 In his memoirs, Kerensky admitted that in 1917 he consulted many times with Petrażycki on legal issues but regretted that “in the conditions of 1917 his advices could hardly be followed” (Kerensky 1996[1966]: 29). 15 Petrażycki’s close follower, Guins, tells that after the Bolshevik revolution Petrażycki was deeply troubled and told him in a private conversation: “No reason to work further, everything is lost. Now, I am concerned only with saving my manuscripts and with preparing my departure” (Guins 1931: xxxii). 16 This term here does not refer to the Bolshevik government. Originally, “soviets” (“councils” in Russian) were self-​governing units of direct democracy that people created in the days of the February Revolution to autonomously manage their affairs and to fill the regulatory gaps that appeared after the Imperial government was disbanded and the Provisional Government had proven too weak. The way the Soviet Union was officially structured in terms of a pyramid of soviets diverged considerably from these original forms (see Gurvitch 1934). 17 In a letter to the French historian Fernand Braudel (dated December 18, 1962), Gurvitch writes that he was in the throng that greeted Lenin when he came to the Finland Railway Station in Petrograd (April 16, 1917) and that at that time Gurvitch shared the ideas of Russian social-​revolutionists (Institut de France. Fonds Fernand Braudel. Inv. N. 52). In another letter addressed to the French sociologist, Jean Duvignaud a year before (November 4, 1961), Gurvitch admitted that he had been “very actively” engaged in the revolutionary events (Institut des Mémoires de l’Edition Contemporaine. DVG2.Cote 03). 18 It could be argued that for Petrażycki the supreme moral value was not freedom, but love. For him, love transcends legal and moral regulation and makes them unnecessary. In Petrażycki’s philosophy, there seems to exist at least two hierarchies of values: the eschatological hierarchy, where love prevails over freedom, socialism trumps capitalism, and love eventually replaces law and morality (Petrażycki 2010[1913]: 591–​593); and the mundane hierarchy, where law is necessary for producing those educational effects that only in a distant future will make it possible for law (and morality) to wither away. This latter hierarchy is evidently based on freedom, including economic freedom (ibid.: 585). 19 This does not mean that Petrażycki denied statutory limitations to protect human freedoms. As a liberal, he advocated the rule of law and defended a strict interpretation of statutes to better protect individual liberties (Fittipaldi 2013).

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20 Here I leave aside other political differences between Gurvitch and Petrażycki, such as their political writings, their legislative and other practical initiatives, their respective economical ideas, and the political programs they endorsed. 21 This does not mean that normative facts are projections, phantasms, or pure thought objects. Normative facts may also be real facts to which people refer in order to justify certain normative judgments or convictions and to ascribe binding force (authority) to certain rules of conduct. However, since Petrażycki focuses on the motivation of human behavior, he does not define normative facts as empirically existing facts, but as objects of belief capable of affecting human motivation. 22 On this subject, see Chapters 10 and 11 in this volume. 23 The main apologist of Petrażycki’s legal theory in the pre-​revolutionary years, Piotr Mikhailov, has suggested that his theory implied at least three notions of law: law as an individual psychological emotion; law as the result of social and psychological adaptation; and law as a factor in the development of society and culture (Mikhailov 1910). 24 On normative facts, see Glossary. 25 On the concept of representation and its role in Petrażycki’s theory of law, see Glossary. 26 On legal hypotheses, see Glossary. 27 The differences from the traditional “sources of law” are that Petrażycki offered a presumably non-​exhaustive list of normative facts, and that they are not external facts but objects of realistic representations (on this concept, see Glossary). 28 With the necessary caveats, the same can be said about Petrażycki’s works on legal policy, written until his emigration to Poland. Petrażycki held that emotions, which contribute to cultural progress and bring societies closer to the ideal of love, should be implemented in the relevant legislation. Petrażycki interprets such a movement toward the ideal of love as binding on lawmakers, although this ideal itself, in his conception, does not have normative force. In this light, similar objections can be raised against both Petrażycki and Gurvitch for their implicit conviction that certain ideals have normative value per se—a conviction that they tried to conceal when referring to sociopsychological facts. 29 In his Russian writings, Gurvitch uses the concept of vseedinstvo, “All-​Unity”—​a term that belongs in the Russian philosophical tradition and that was introduced by the Russian philosopher,Vladimir S. Solovyov (1853–​1900). However, the term communion is used in Gurvitch’s English writings, which is why I employ it in this chapter. 30 In quotes, as Gurvitch’s interpretation of phenomenology and his qualification of his own sociology as phenomenological are subject to debate. See Balandier (1975) on this issue. 31 Gurvitch disagreed with Durkheim on this point, and here his position coincides with that of Petrażycki. For an interesting comparative analysis of Petrażycki’s and Durkheim’s approaches, see Clifford-​Vaughan and Scotford-​Morton (1967). 32 Treviño (2011: 153) underscores the resemblance between Petrażycki and Gurvitch in their interpretations of the deeper intuitive layers of psychological reality. 33 This metaphor of crystallization is often utilized by Gurvitch and is presumably borrowed from Petrażycki, as he often uses that term (kristallizacija). 34 Generally speaking, these elements are missing in Gurvitch’s legal sociology, with the exception of his idea of justice as a balance between collective and individual values. 35 That is, [t]‌o find a form of association which will defend and protect with the whole common force the person and goods of each associate, and in which each, while uniting himself with all, may still obey himself alone, and remain as free as before.

Rousseau 1920[1762]: 14

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36 On Petrażycki’s conception of adaptation, see Chapter 5, in this volume. 37 Or, if at all, only in that specific aspect discussed by Edoardo Fittipaldi as “radical empiricism” (2012: 10–​11). 38 The Marxist follower of Petrażycki, later an outstanding Soviet legal scholar, Mikhail Reisner, noted this solipsist and individualist penchant in Petrażycki’s theory, interpreting his theory as follows: “one has to admit the existence of the law wherever there is at least one person who recognizes the law and believes in it” (Reisner [1908: 69]; similar objections against Petrażycki were raised by Valerij Zorkin [1978: 203]). Petrażycki never endorsed Reisner’s “class legal consciousness”—​a conception based on Petrażycki’s ideas about the normative force of legal emotions but reinterpreted in the terms of collective (class) psychology. It could be said, by the way of example, that the legal theory of this extreme left-​wing follower of Petrażycki’s has many affinities with Gurvitch’s legal theory (Reisner 1925). But this must be the subject for another paper. 39 This and other factors (connected with his failed cultural reintegration into Polish society, his harassment by Polish nationalists, etc.) have been suggested by Petrażycki’s Russian follower Georges Guins (1931). On this subject, see also Merezhko (2012).

References Antonov, Mikhail V., 2010. Ob intellektual’nyh istokah pravovoj koncepcii G.D. Gurviča. Rossijskij ežegodnik teorii prava, 3: 667–​689. Antonov, Mikhail V., 2011. Philosophie du droit et défense de la démocratie. L’activité de Georges Gurvitch au sein de l’Institut de Philosophie du Droit et de Sociologie juridique. In Annie Stora-​ Lamarre (ed.) La Republique et son Droit (1870–​ 1930). Besancon: Presses universitaires de Besancon: 221–​235. Antonov, Mikhail V., and Etienne Berthold, 2006. Sources russes de la pensée de Georges Gurvitch: écrits de jeunesse dans les annales contemporaines (1924–​1931). Cahiers internationaux de sociologie, 121: 197–​226. Antonov, Mikhail V., and Andrey V. Polyakov, 2012. Leon Petrażycki’s Legal Theory and Contemporary Problems of Law. In Bjarne Melkevik (ed.) Standing tall: Hommages à Czaba Varga. Budapest: Pazmany Press. Balandier, Georges, 1975. Gurvitch and Phenomenological Sociology. Oxford: Blackwell Publishers. Chicherin, Boris N., 1998[1900]. Filosofiia prava. St. Petersburg: Nauka. Clifford-​Vaughan, Michalina, and Margaret Scotford-​Morton, 1967. Legal Norms and Social Order: Petrażycki, Pareto, Durkheim. The British Journal of Sociology, 18: 269–​277. Duvignaud, Jean, 1970. Anthologie des sociologues français contemporains. Paris: PUF. Fittipaldi, Edoardo, 2012. Everyday Legal Ontology. A Psychological and Linguistic Investigation within the Framework of Leon Petrażycki’s Theory of Law. Milan: LED. Fittipaldi, Edoardo, 2013. Nauka na službe u principa zakonnosti: kritičeskaja zaščita koncepcii iuridičeskoj dogmatiki L’va Petražickogo. Pravovedenie, 5: 48–​76. Fittipaldi, Edoardo, 2016. Introduction: Continental Legal Realism. In Enrico Pattaro and Corrado Roversi (eds.), Legal Philosophy in the Twentieth Century: The Civil Law World, Tome 2: Main Orientations and Topics. Dordrecht: Springer. Guins, Georges, 1931. L.I. Petražickij –​harakteristika naučnogo tvorčestva (1867–​1931). Očerk. Harbin, 1931 (offprint from Izvestija Juridičeskogo Fakul’teta, No. 9).

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Guins, Georges, 1966. An Interview Conducted by Boris Raymond with Georges Guins. Berkeley Regional Oral History Office at the Bancroft Library. Berkeley, CA: University of California. Gurvitch, Georges, 1917. Političeskaja doktrina Russo. Central State Historical Archive of St. Petersburg. Funds of the Petrograd University (1915–​1917). Fund 14, Script 25, File 155. Gurvitch, Georges, 1918a. Russo i Deklaracija prav čeloveka i graždanina. Ideja neotčuždaemyh prav ličnosti v političeskoj doktrine Russo. Petrograd: Izdatel’stvo Wolf. Gurvitch, Georges, 1918b. Vsja vlast’ Sovetam! Sbornik statej po proletarskoj revolutsii i pravu, 1, 4: 1–​21. Gurvitch, Georges, 1929. Le principe démocratique et la démocratie future. Revue de métaphysique et de morale, 36: 403–​431. Gurvitch, Georges, 1931a. Le temps présent et l’idée du droit social. Paris: J.Vrin. Gurvitch, Georges, 1931b. L.I. Petražickij kak filosof prava. Sovremennye zapiski, 47: 480–​492. Gurvitch, Georges, 1931c. Une philosophie intuitionniste du droit: Léon Petrasizky. Archives de Philosophie du droit et de Sociologie juridique, 1: 403–​420. Gurvitch, Georges, 1932. L’idée du droit social. Notion et système du droit social, Histoire doctrinale depuis le 17e siècle jusqu’à la fin du 19e siècle. Paris: Sirey. Gurvitch, Georges, 1934. Libéralisme et Communisme: une réponse à M. Ramon Fernandez. Esprit, 2: 448–​452. Gurvitch, Georges, 1935. L’expérience juridique et la philosophie pluraliste du droit. Paris: A. Pedone. Gurvitch, Georges, 1947. Sociology of Law. London: Routledge and Kegan. Gurvitch, Georges, 1949. La technocratie est-​elle un effet inévitable de l’industrialisation? In Georges Gurvitch (ed.) Industrialisation et technocratie. Paris: A. Colin: 179–​199. Gurvitch, Georges, 1962. L’effondrement d’un mythe politique: Joseph Staline. Cahiers Internationaux de Sociologie, 33: 5–​18. Gurvitch, Georges, 1967. Proudhon et Marx. In L’actualité de Proudhon. Colloque des 24 et 25 novembre 1965. Bruxelles: Editions de l’Institut de Sociologie. Gurvitch, Georges, 1969[1958]. My Intellectual Itinerary or “Excluded From the Horde”. Sociological Abstracts, 17, 2: i–​xiii. Gurvitch, Georges, 2009[1944]. La déclaration des droits sociaux. Paris: Dalloz. Kerensky, Alexander F., 1996[1966]. Rossija na istoričeskom povorote. Moscow: Terra. Kojder, Andrzej, 1994. Legal Policy:The Contribution of Leon Petrażycki. Polish Sociological Review, 106: 155–​163. Meduševskij, Andrej N., 2014. Dialog so vremenem: rossijskie konstitucionalisty konca XIX –​ načala XX vv. Berlin; Moscow: Direct-​Media. Merezhko, Aleksandr A., 2012. The Mystery of a Legal Philosopher’s Death. Journal of Comparative Law, 7, 1: 108–​114. Mikhailov, Piotr E., 1910. Spor psihologičeskoj teorii prava s teoriej vnešnih imperativov (Contra kritiki professora Palienko). Pravo, 12. Mnukhin, Lev A., et al., 1995. Russkaja emigracija. Hronika naučnoj žizni vo Francii (1930–​ 1934).Vol. 2. Paris and Moscow: IMCA Press. Novgorodtsev, Pavel I., 1902. Nravstvennyj idealism v filosofii prava. In Pavel Novgorodtsev (ed.) Problemy idealizma. Moscow: Moskovskoe psihologičeskoe obščestvo. Olivecrona, Karl, 1948. Is a Sociological Explanation of Law Possible? Theoria, 14: 167–​207. Opałek, Kazimierz, 1961. The Leon Petrażycki Theory of Law. Theoria, 27: 129–​150.

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Palienko, Nikolai I., 1908. Učenie o suščestve prava i pravovoj svjazannosti gosudarstva. Kharkov: Bengis. Peczenik, Aleksander, 1975. Leon Petrażycki and the Post-​Realistic Jurisprudence. In Jan Gorecki (ed.) Sociology and Jurisprudence of Leon Petrażycki. Urbana, IL: University of Illinois Press: 83–​105. Petrażycki, Leon, 2010[1913]. K voprosu o social’nom ideale i vozroždenii estestvennogo prava. In Leon Petrażycki (Elena V. Timoshina ed.) Teorija i politika prava. Izbrannye trudy. St. Petersburg: Universitetskij Izdatel’skij konsorcium. Petrażycki, Leon, 2011[1909–​ 1910]. Teorija prava i gosudarstva v svjazi s teoriej nravstvennosti. Abridged English translation Theory of Law and State in Connection with a Theory of Morality. 2nd ed. In Leon Petrażycki (Nicholas S. Timasheff ed.) Law and Morality: Leon Petrażycki, with a new introduction by A. Javier Treviño. Piscataway, NJ: Transaction Publishers. Podgórecki, Adam, 1980–​ 1981. Unrecognized Father of Sociology of Law: Leon Petrażycki: Reflections based on Jan Gorecki’s Sociology and Jurisprudence of Leon Petrażycki. Law and Society Review, 15, 1: 183–​202. Pokrovskij, Iosif A., 1915. Irracional’noe v oblasti prava. Juridičeskij vestnik, 11, 3. Popper, Karl, 2013[1945]. The Open Society and Its Enemies. Princeton, NJ: Princeton University Press. Reisner, Mihail A., 1908. Teorija L.I. Petražickogo, marksism i social’naja ideologija. St. Petersburg: Obščestvennaja pol’za. Reisner, Mikhail A., 1925. Pravo: Naše pravo; Čužoe pravo; Obščee pravo. Leningrad; Moscow: Gosizdat. Rousseau, Jean J., 1920[1762]. Du contrat social ou Principes du droit politique. English translation by G.D.H. Cole, Social Contract and Discourses. New York, NY: E. P. Dutton. Sorokin, Pitirim A., 2009. Izbrannaja perepiska. Edited and published by Pavel P. Krotov. Vologda: Drevnosti Severa. Swedberg, Richard, 1978. Georges Gurvitch. A Study of the Relationship between Class, Strategy and Social Thought. Boston, MA: Boston College. Terré, Dominique, 2005. Le pluralisme et le droit. Archives de philosophie du droit, 49: 69–​84. Timasheff, Nicholas, 2011[1955]. Introduction. In Leon Petrażycki (Nicholas S. Timasheff ed.) Law and Morality: Leon Petrażycki, with a new introduction by A. Javier Treviño. Piscataway, NJ: Transaction Publishers. Timoshina, Elena V., 2012. Kak vozmožna teorija prava? Ėpistemologičeskie osnovanija teorii prava v interpretacii L.I. Petražickogo. Moscow: Jurlitinfo. Timoshina, Elena V., 2014. Filosofija prava L.I. Petrazhitskogo: Pravo kak intuitsija obshchego blaga. Pravo i gosudarstvo, 65, 4: 80–​89. Treviño, A. Javier, 2011. On Leon Petrażycki, Law and Morality. In A. Javier Trevino (ed.) Classical Writings in Law and Society. Piscataway, NJ: Transaction Publishers. Tyrkova-​Williams, Ariadna V., 2007[1952]. Na putjah k svobode. Moscow: MShPI. Vishniak, Mark V., 1957. Sovremennye zapiski. Vospominanija redaktora. Bloomington, IN: Indiana University Press. Walicki, Andrzej, 1987. Legal Philosophies of Russian Liberalism. Oxford: Oxford University Press. Zorkin,Valerij D., 1978. Pozitivistskaja teorija prava v Rossii. Moscow: Izdatel’stvo MGU.

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3 LEON PETRAŻYCKI AND ADAM PODGÓRECKI On the Reception of the Psychological Theory of Law in Poland under Communism Krzysztof Motyka

Introduction The connection between the scholarly works of Adam Podgórecki (1925–​1998) and the ideas of Leon Petrażycki is generally known in socio-​legal circles, at least in Poland, Russia, and Italy. In this chapter,1 I argue that after Jerzy Lande’s death in 1954 it was Podgórecki who most emphasized the value of Petrażycki’s theory of law and the affinity of Podgórecki’s own scholarly ideas with it. I also contend that Podgórecki’s high evaluation of Petrażycki’s theory did not prevent him from raising some criticisms, although they were not as fundamental as, for example, those raised by other students of Lande’s, like Kazimierz Opałek of Jagiellonian University (Motyka 1993: 57–​ 65). Toward Petrażycki’s theoretical approach, Podgórecki adopted neither a “groundless criticism” nor an “apologetic exegesis,” which he identified as the two prevailing attitudes in the Polish scholarship of this time. Instead he attempted a “continuative verification” of some of Petrażycki’s empirical theories—​mainly through their operationalization and empirical testing (Podgórecki 1969b: 151). Podgórecki was first introduced to Petrażycki’s ideas while a student at the Faculty of Law of the Jagiellonian University in Kraków. There, he attended a private seminar conducted during 1947–​ 1952 by Jerzy Lande (Podgórecki 1997: 59), who had been a student of Petrażycki at St. Petersburg University (Banaszkiewicz 2015; Fittipaldi 2016a). Other seminar participants who subsequently formed the core post-​war Polish theory and sociology of law included Jerzy Wróblewski, Kazimierz Opałek, Grzegorz Leopold Seidler, Franciszek Studnicki, Wiesław Lang, Maria Borucka-​Arctowa, and Jan Górecki. According to Opałek, Lande, while introducing his students to legal theory, including that of Petrażycki, “mainly unleashed upon the world ‘misfits,’ who, while armed with DOI: 10.4324/9781351036740-5

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the horizon-​broadening theory of Leon Petrażycki, chose to follow their own, separate paths” (Opałek 1983: 54, see also Podgórecki 1997: 60–​64; Connelly 2000: 167). Most of Podgórecki’s fellow seminar participants, while originally inclined toward Petrażycki’s ideas, later attempted to combine them with Marxism, and finally, in the early 1950s, resolved to adhere wholly to Marxism (on this topic, see Borucka-​Arctowa, Opałek, and Grzybowski 1955: 57–​59; Wróblewski 1979). They complied with the recommendation by Stefan Rozmaryn, a leading ideologue of the sovietization of Polish jurisprudence, who in 1948 declared that only by harmonizing it with Marxism could it become a true science (Rozmaryn 1948: 15). The following year, Rozmaryn invoked the authority of the Soviet scholar Vladimir K. Rajher to denounce Petrażycki’s theory as a solipsistic doctrine that ignored the class nature of law and warned against attempts to adapt it to Marxism. In Rozmaryn’s opinion, “that Russian science had so severely criticized such attempts should serve to deter anybody from attempting anything of the kind here” (1949: 17). The administratively imposed transition to Marxism (see Sadurski 1982: 589–​ 597) of Polish jurisprudence is most apparent in the works of Grzegorz Leopold Seidler, who based his first post-​war publications on “Petrażycki’s groundbreaking accomplishments,” which “opened for jurisprudence the door for realistic research into the law” (Seidler 1946 and 1947: 49, 9). A few years later, and already a Marxist, Seidler became Petrażycki’s chief critic: Criticism of L. Petrażycki’s basic theoretical assumptions should be carried out promptly as a way of overcoming the bourgeois methodology and conceptions that inhibit the development of legal science in Poland. Seidler 1950: 10 In that difficult period, Seidler’s position was not uncommon.2 During the dark days of Polish Stalinism, having already obtained a Ph.D. in law (1951) and an M.A. in Sociology (1952), Podgórecki worked as a legal counselor in a little town near Kraków. In 1956, he began his academic career at Warsaw University under the guidance of the philosopher Tadeusz Kotarbiński and—​ starting from 1958—​of Kotarbiński’s student Maria Ossowska, a theorist and sociologist of morality. Kotarbiński and Ossowska were prominent members of the renowned Lvov-​Warsaw School and familiar with, respectful to, and influenced by Petrażycki’s work (Kurczewski 2013: 79–​80; Kojder 1999: 324; Motyka 1993: 75–​76, 79, 81, 85; Woleński 1985: 375).3 Like Kotarbiński and Ossowska, Podgórecki neither joined the communist party nor did he declare himself a Marxist, which however did not prevent him from referring to the Marxist trend (1962b: 132, 1974: 5, 14–​15, 222, 276, 1991a: 10, 67, 120, 2016: 18 ff.; Podgórecki and Łoś 1979: 41 ff.).4 He repeatedly stressed the significance of Petrażycki’s theory for the development of sociology

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of law, especially in Poland, and its relevance to his own scholarly research (e.g., Podgórecki 1962b: 122 ff., 1968: 125–​127; Podgórecki 1980–​1981, 1999b). Podgórecki’s notable identification with the Petrażyckian tradition was expressed in dedicating his Pathology of Social Life to Petrażycki (Podgórecki 1969a).

Petrażycki’s Legacy in Podgórecki’s Work There are several links between Podgórecki’s ideas and Petrażycki’s theory (Ziegert 1977; Motyka 1992; Kojder 2009; Kurczewski 2013). Indeed, Podgórecki’s field of interest and his empirical orientation immediately evoke Petrażycki’s psychological theory of law. Perhaps most important is Podgórecki’s adoption of Petrażycki’s broad understanding of law. Similar to Petrażycki, Podgórecki’s concept of law does not assume law’s dependency on the state. Rather, it presupposes that along with the legal norms produced or recognized by the state there also exist non-​state legal norms and systems. This is so even if these norms and systems fundamentally contradict state-​sanctioned law (e.g., Podgórecki 1964: 12).Thus, contrary to legal positivism’s statist and monistic understanding of law, Podgórecki’s and Petrażycki’s notions of law are both anti-​statist and pluralistic. In addition, Podgórecki readily admitted that he followed in the footsteps of Petrażycki (ibid.), an acknowledgment confirmed by his using, albeit somewhat loosely and inconsistently, some of Petrażycki’s terminology (official law, unofficial law, intuitive law, positive law—​ e.g., Podgórecki 1978: 21, 25; 1969a: 43; 1971: 26) and arguments against legal positivism (1969a: 40; 1973: 137, 140). Podgórecki also accepted Petrażycki’s principle of adequacy5 and his distinction between theoretical (or “value-​free” in the sense of Weber) and practical scientific attitudes.6 Accordingly, Podgórecki noted the inadequacy of the traditional conflation of theoretical and practical (i.e., the legal-​dogmatic) approaches to law (1978: 21). Also Podgórecki’s classification of the legal sciences and his ideas about sociology of law and legal policy are traced to Petrażycki (see Podgórecki 1967, 1969a: 33–​43, 1971: 22–​24).7 The same may be said about Podgórecki’s methodological considerations on the practical sciences (Podgórecki 1975b)—​e.g., his concept of sociotechnics (Podgórecki 1965, 1966b; Goćkowski 1969)—​and about his distinction between the normative and teleological approaches to law, which Podgórecki operationalized and used extensively (Podgórecki 1969b, 1969c, 1974: 89–​100, 1991a: 43 ff, cf. also Mariański 1984). Moreover, Podgórecki differentiated between self-​generated and imposed legal systems, classifications that parallel Petrażycki’s complementary and disparate (i.e., non-​complementary) societies (Petrażycki 1936: 33–​34, Podgórecki 1984: 98, 1991a: 156–​157, 1991b: 69).8 Podgórecki generally agreed with Petrażycki on the essential functions of law (Podgórecki 1962b: 152–​153, 1991a: 245, cf. Petrażycki 2011[1909–​1910]: 120–​1379) and emphasized that Petrażycki’s was “probably the most developed theory” on this issue (Podgórecki 1971: 415). Therefore and quite naturally, it was

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Petrażycki’s theory that he used as a model for systematizing his own findings. As Klaus A. Ziegert (1977: 168) puts it, “Podgórecki’s work may be seen as an attempt to test empirically Petrażycki’s theory on the imperative-​attributive character of law.” And it is to this theory that I now turn.

The Concept of Law Podgórecki accepted Petrażycki’s view of the imperative-​ attributive structure of law but interpreted it quite differently. Let’s begin with what Podgórecki’s approach to law has in common with Petrażycki’s. Petrażycki’s concept of law differed from the traditional approaches vertically, or as to the ontological status of law, as well as horizontally, or as to the denotation of this concept. For him, law encompasses all imperative-​attributive experiences. From the projective point of view, all norms exhibiting an imperative-​attributive structure, regardless of state authorization or their contents,10 are full-​blown legal phenomena. Petrażycki criticized the statist theories of law for, among other things, their tautological character. This is because the state, the state authority, the recognition by the state are themselves conditioned upon the existence of a complicated system of legal norms and the scientific notion of state requires the prior determination of a scientific concept of law. Petrażycki 1959[1909], § 18: 368 This assessment as well as his critique of the sanction theories of law11 were repeated by Russian and Polish scholars of various theoretical orientations, including Podgórecki (1964: 12, 1969a: 40, 1973: 137, 140). They were also noted, usually with approval, by some Western legal theorists (Kelsen 1945: 28–​29; Stone 1946: 64; de Azevedo 1948: 439; Olivecrona 1948: 169–​171; Hall 1973: 119; Roberts 2005: 296). Moreover, Petrażycki claimed that by introducing into the concept of … law the aleatory feature of this or that state’s attitude toward it and by adopting that feature as essential, the science … deprives itself of … a rich and instructive material, that is, those legal phenomena that came and come into being outside the state, independently of it, and before the emergence of the state, and it limits its range of view to a narrow, so to speak, official-​clerical perspective. Petrażycki 1959[1909], § 18: 370

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This thought was echoed by Podgórecki: If law is to be perceived as nothing else but the valid norms …, a thus perceived law does not comprise social life phenomena, such as children’s law … or the laws of various subcultures (lovers do have their own binding etiquette; thieves do have their specific moral and legal codes; mafia managed to develop its own courts, courts of appeal, and even a procedure which is binding in them; revolutionary movements have their own concepts relating to how they want certain domains of social reality to be … ). Ignoring such and similar areas of operation of law leads to a situation where entire branches of social life ruled by legal phenomena are treated—​due to their being viewed through normatively distorted glasses [i.e., from the standpoint of what ought to be according to the state law]—​as pathological, deviant, abnormal, or bizarre behaviors. Podgórecki 1978: 21 Criticizing the notion of law used by the “traditional”12 law theorists, including Marxists, and clarifying his own take on this subject, Podgórecki wrote: Here the reasoning is getting away from the traditionally accepted concepts that treat law as a system of binding norms. What we adopt here is a slightly different understanding of law, derived from L[eon] Petrażycki. It assumes that law also comprises various subjective legal emotions that exist within different social groups and are often inconsistent with the generally adopted legal system. Podgórecki 1964: 12 Elsewhere Podgórecki states that by “law” he means “not only the official (binding) law but also the law that is approved in some general social circles” (Podgórecki 1969a: 40). The conceptualizations of law in these last two quotations13 show a significant difference from Petrażycki’s, which was nonetheless Podgórecki’s express point of departure. Petrażycki conceives law to be any psychical experience (including, perhaps, its contents and the projections it engenders) insofar as it has an imperative-​attributive character. For Podgórecki, the main shortcoming of such a characterization is that it attributes a legal value even to the most bizarre experiences, including, for example, the delusions of an insane person. Podgórecki claims that Petrażycki’s conceptualization makes it possible even for “extremely absurd attitudes” to gain “the grotesque charisma of a legal phenomenon” (1971: 361, cf. also 1974: 192).14 In his opinion, “that cannot be accepted if we do not want the whole concept of law to degenerate into a caricature” (ibid.).

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Podgórecki repeatedly attempted to provide a rendering of law unencumbered by what he regarded as deficiencies in Petrażycki’s conceptualization. Here is a different definition: law means formalized mutual duties and rights that sustain a given social system. 1971: 375 and, more simply, law is a formalized relationship of rights and duties, functional in relation to a given social system. ibid. Podgórecki explained that by formalization he meant “a characterization of behavior that is captured in a clearly socially recognizable pattern and, usually, but not always, is contained in provisions” (1971: 377). Inserting this meaning of formalization into the definition of law dramatically narrows the concept, not only as compared with that of Petrażycki, but also with the definitions Podgórecki had previously proposed and those he would formulate subsequently. Podgórecki’s somewhat carelessness with definitions did not prevent him from claiming that his conceptualization(s) of law were free from the errors of juristic, or legal-​dogmatic thinking.15 Podgórecki, however, did not break entirely with the traditional understanding of law, in that he included among law’s defining characteristics its functionality for a social system and treated it as something charismatic by its very nature. Podgórecki seems not to have noticed that, if being socially functional is a constitutive property of law, two mutually contradictory legal norms cannot at the same time be functional in relation to that system. In this view, incompatible norms can only exist in different social systems, in which case a given pattern of behavior would be legal in a given system, while an incompatible pattern of behavior might possibly be legal only in another system. Jerzy Lande would have likely objected that functionality, being evaluative, rendered Podgórecki’s definition defective. Anticipating this critique, Podgórecki argued that this was an evaluation that could not and should not be excluded. Indeed, the fact that it had been omitted in his previous depictions of law was a conceptual flaw. While not developing this point further, Podgórecki stressed (1971: 377) that the functionality he had in mind should not be taken as an evaluation external to a given social system but was rather an evaluation from the standpoint of its intra-​systemic values. In his subsequent works, Podgórecki defined law in a slightly different way. For example, law is: a social norm which is based on four reciprocal elements belonging to the parallel parties and containing the corresponding pairs of rights and duties. 1974: 272, emphasis in the original

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A significant change here is the exclusion of formality16 and functionality as necessary properties of a legal norm. A norm (whether legal or not) is now only “usually functional for the given system” (ibid.). Podgórecki called the last-​ mentioned characterization of law tetradic17 and saw it, following Petrażycki, as a theoretical and not a practical definition of law. On the one hand, Podgórecki regarded the distinction between theoretical and practical approach as very important, on the other, he was aware that his (theoretical) definition could not comprise all types of law and so would have been criticized as inadequate by Petrażycki (ibid.: 1973: 133, 137, 140; 1975a: 41–​42, 1976: 54).18 An even more significant change that invites criticism is Podgórecki’s narrowing of the law concept to norms creating two (and not merely one, as per Petrażycki’s definition) reciprocal pairs of rights and duties, that is, to normative situations where each party has at least one right and one obligation. Such situations are typical of contracts, which mainly create bilateral obligations, while, for example, obligations arising from torts are unilateral. Similarly, human rights, if seen as rights against the State, amount only to obligations for states (e.g., to not torture) and rights for humans (e.g., to not be subjected to torture). Was Podgórecki aware that such phenomena do not consist of tetrads of rights and duties and therefore cannot be regarded as law under his tetradic definition? Podgórecki attempted to formulate his tetradic concept of law more precisely by regarding law as “norms … aggregated by mutual expectations and binding with duties and rights for at least two parties” (1978: 20). Podgórecki claimed that this definition addresses the deficiencies of Petrażycki’s definition and explained that a madman’s idea that he is the owner of Egyptian pyramids … is not … a legal phenomenon; it would become such, however, if another madman recognized his claims and if on the basis of that recognition appropriate social interactions between them resulted. ibid. To begin with, despite Podgórecki’s attempt at precision, the pyramid’s example does not satisfy his tetradic definition. Here there is no tetrad of rights and duties because there is only the right of the first madman and the correlative duty of the other one. Further, why is it that one madman cannot make law but two can (Motyka 1992: 137)? Arguably, his reply might have been that only in the case of an interaction between two participants are we dealing with a form of consistency between their normative beliefs, and thus with corresponding interactions caused by that consistency. Contrary to Petrażycki, who located law in the individual psyche and who regarded a single madman’s conviction19 as fully legal, Podgórecki, with his tetradic concept, views law as an interpersonal and supraindividual phenomenon based on a “bilateral perception of rights and duties” (1973: 135). The fact that Podgórecki tacitly connected legal phenomena with social interactions

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provides further evidence that he moves law’s ontological status from psychology toward sociology. A similar reorientation had also been made by students of Petrażycki, like Pitirim A. Sorokin, Nicholas S. Timasheff, and Georges Gurvitch, who, after leaving Russia, developed their mentor’s ideas and promoted them in the West (see Baum 1967; Horvath 1971; Schiff 1981). The definition of law just presented was not Podgórecki’s last word on the subject. He reformulated it in 1996 as follows: law should be understood as an integrated parallel schemata [sic] (the mutual acknowledgement of duties and claims) of formal or informal character. These schemata constitute an elaborate horizontal network of interrelations (independent from the state) that compose the main fabric of social relations. Vertical intervention (directly connected with the state) is a tool used by those who have power to sustain the legal schemata and the hierarchy of orders in a given social system. Podgórecki 1996: 200 In Podgórecki’s posthumously published works, law is defined as an integrated parallel schema that “exhibit[s]‌normative consistency” (Podgórecki 1999a: 22, 2016: 234). Moreover, he addresses the question of why one person cannot make law, whereas two can: To this [the] reply is: “yes, they can.” If these two individuals interact according to interpersonally-​accepted patterns, they act socially, regardless of their states of mind or their intentions … If, however, one person individually constructs his own subjective and solipsistic set of rights and duties, then we can envisages [sic] the emergence of an atomistic social disorder—​a pluralistic legal anomie may come into existence. Thus, only if a complementary relation between the respective rights and duties of two or more parties is established can one speak about law. Complementary relations guide social behaviour in an organized way (by creating patterns of mutual expectations) and introduce recognized behaviour into social life. These should be called parallel schemata. Only if parallel schemata exist, legal phenomena occur. Yet perceptions of legal duties or rights, if they remain in someone’s solipsistic psyche or his subjective and individual imagination, do not constitute socio-​legal phenomena, since they do not represent a starting point for coordinated group behavior and do not create sufficient grounds for organized social interaction. 1999a: 17–​18, 2016: 228–​229, emphases in the original In his definitions of law, Podgórecki, who aimed to undermine analytical jurisprudence, was frequently careless (Motyka 1993). A student and collaborator of

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Podgórecki, Jacek Kurczewski, sees his mentor’s empirical sociology of law as an application of the grounded theory approach and thus treats law as a sensitizing rather than a definitive concept: the sociological theory of law as put forward by Podgórecki was developed through repeated attempts at creating such concepts. If … grounded theory is a research approach or method that calls for a continual interplay between data collection and analysis to produce a theory during the research process, then Podgórecki’s sociological theory of law is certainly a life-​long project in the grounded theory of law … In fact, the crucial concept of “law” in this theory was permanently being reworked by Podgórecki, and therefore the “law” as well as the whole “sociological theory of law” may best be treated as “sensitizing concepts” within the grounded theory model. Kurczewski 2013: 185 Kurczewski claims that this is also true of Podgórecki’s hypothesis of the three levels of law’s operation. According to this hypothesis an abstract legal rule operates through three intermediaries: (1) the socioeconomic system, (2) the legal subculture in which the rule operates, and (3) the type of personality of its addressee (Podgórecki 1966a, 1974: 224 ff, 1991a: 33–​34, 2016).20

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The Origin and Development of Law Podgórecki (1962b: 122–​134; 1974: 211–​224; 1980–​1981) underscored that, while Petrażycki considered law to be a psychical phenomenon, his theory of law contains numerous sociological analyses.21 For Podgórecki, this is particularly true with regard to Petrażycki’s theory of the origin and development of law. According to that theory, law, like other cultural phenomena, comes into being through a long process of emotional and intellectual “infection” (cf. Ossowski 1935: 4) that resembles logical induction and Darwinian natural selection. The terms that Petrażycki used for this process, which has the character of an unconsciously ingenious adaptation of law to social life, are “crystallization,” “emotional plebiscite,” and “sociocentric adaptation”: legal norms adopt contents that, under given circumstances, are functional for the group as a whole.22 As Lande explains, every group is an “enormous laboratory of evaluations” where through mimic, gestures, and language, people exchange their experiences. Social experience is much richer than the individual, and it takes into account the more distant effects of our actions which are barely accessible to individual experience … In the course of interactions, individual evaluations undergo a process similar to the struggle for existence and

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natural selection: those which are not favorable to the group are eliminated, and only evaluations “resultant” from social experience remain … The adjustment is oriented toward the good of the group, within which is occurring an intellectual and impulsive interchange. That is why there occurs, within a primitive, isolated group, a closely knit group ethic of internal solidarity and an enmity toward all aliens. However, once exchange relations with neighboring groups arise, the experimental laboratory widens and the neighbors become allies and friends. With the development of intergroup relations, the interchange of experiences and appraisements spreads out, and at the same time the ethic expands, and this eventually results in the idea of a brotherhood of man. Lande 1975[1952]: 35, cf. Petrażycki 2011[1909–​1910]: 329–​330 Petrażycki claims that law plays a major role in socializing all of humanity. For him, legal history discloses the feedback of law on human character that brings humanity closer to “the ideal of active love” (Petrażycki 2011[1909–​1910]: 328).23 Podgórecki remarked that, when discussing the factors that influence the emergence and the shape of law, Petrażycki did not examine the different ways those factors work, nor did he prioritize them. For Podgórecki, what is needed is a model for assessing the significance of factors like climate, demography, and economy that have an impact on the law and that “explain in what kind of situations those specific factors become significant” (Podgórecki 1962b: 132). Podgórecki’s reservation is justified given that Petrażycki is silent on the subject. Podgórecki’s second objection relates to Petrażycki’s claim that the norms created through emotional and intellectual infection are the result of individual (and possibly subgroup) interests and are optimal for the group as a whole. According to Podgórecki, this claim is characterized by an “arbitrarily adopted optimism” (1962b: 133). He emphasizes that within groups there are conflicts of interest between subgroups and sometimes these subgroups become dominant, thus allowing them to shape law for the whole group; even law that is detrimental for the group as a whole. Based on the power inequality of participants in the political process, including law-​making, and that a more important social interest may lose against a less important one, Podgórecki questions Petrażycki’s theory, which “seems to assume a certain proportionality between the social needs and the law that should serve those needs” (ibid.).Thus, he writes that “the Marxist concept of the origins of law better explains in this field the social factors conditioning the law” (ibid.: 70). It should be noted that Petrażycki spoke not of a law but of a tendency and emphasized that, within certain limits, statutory provisions may come into being determined by calculations or interests … of one kind or another, [including] provisions contradictory

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to the legal-​intuitive conscience of the legislators themselves or masses of people, which, nevertheless bring to life a corresponding positive law. Petrażycki 1960[1910], § 36: 275 Petrażycki also indicated that certain social groups are tied to the law in force by their interests, which is why they resist attempts to change and adapt it to the intuitive law of the majority of the society (ibid.: 276). Already in his Theory of Incomes (1893–​1895, in German), Petrażycki criticized the draft of the German civil code for protecting the interests of the creditors at the cost of the debtors, and, more generally, of the well-​off at the cost of the poor. In his opinion, that draft, “in the general economic struggle, provide[d]‌… the winners with new weapons, new power, and … worsen[ed] the situation of the losers” (Petrażycki 1893–​1895, vol. 2: 514, cf. 521). For similar reasons, he criticized the statutory reception of customary law (ibid.: 522, cf. also Fittipaldi and Timoshina 2017).

Legal Policy The proposal for a scientific policy of law links Podgórecki to Petrażycki in several ways. First, Podgórecki took over and further developed the idea of legal policy that Petrażycki had previously proposed and justified in detail.24 Second, the scientific policy of law occupies a similar place in the intellectual biographies of both scholars. Petrażycki’s works in the policy of civil law (1892), and legal policy in general (1968[1896–​1897]), as well as his sharp critique of the draft of the German civil code (1893–​1895) were produced at the beginning of his career. The same goes with Podgórecki’s first articles that were on legal policy and on the shortcomings of the Polish legal system (1957a, 1957b, 1957c). The creation of a scientific legal policy was Petrażycki’s main concern (Lande 1959[1932]: 573; Babb 1937; Gorecki 1975; Czepita 1992; Kojder 1994; Zyzik 2015), and he returned to it repeatedly throughout his career. Petrażycki understood his whole theory of law as the basis for the science of policy of law, which he saw as being developed at some point in the future, requiring large-​scale inter-​ disciplinary research (Groszyk and Korybski 1981). For Petrażycki: the essence of legal-​political problems consists in a scientifically grounded predetermination of the results, whose obtaining one should expect in case of the introduction of certain legal provisions, and in the elaboration of the principles whose introduction into the system of the law in force by means of legislation (or by other means, like in the international domain) would be the cause of certain desirable effects. Therefore, the scientific policy of law should be based on the investigation of causal properties, that is, of the causal action of law. 1959[1908]: 13–​14

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Petrażycki believed that in order to effectuate the science of legal policy—​ which he considered a psychological science (ibid.: 16)—​it is first necessary to know “the nature of its premises and method” (ibid.: 13). Indeed, in his Theory of Incomes (1893–​1895), he had already considered its methodological issues and outlined a research program (Babb 1937; Groszyk and Korybski 1981; Giaro 1995, 2016). In that book, he noted that civil policy should be constituted by: (1) a theory of human psychology, (2) a theory of the ideal to be pursued along with a theory of economic and ethical progress, and (3) a methodology (1893–​1895, vol. 2: 623, cf. vol. 2:VIII). Petrażycki’s policy of law was alien to the axiological neutrality of the time. Petrażycki connected it with a specific ideal of how people and society as a whole should become—​an ideal that, in his opinion, would materialize even without an intentional policy of law as a result of the “unconsciously ingenious” developmental tendencies of social life (Zieliński 2007: 143–​152). The job of legal policy, though, was to accelerate the materialization of that ideal: The mission of the future science of the policy of law consists of the conscious leading of humanity in the same direction in which it proceeded until now thanks to unconscious-​empirical adaptation, and the acceleration and improvement of the trend towards that radiant future ideal. Petrażycki 1959[1908]: 18 In his own words, this ideal was “the attainment of a perfect social character, a complete rule of active love in mankind” (ibid.: 15). When discussing how to attain this ideal, Petrażycki explained that: it is about … the gradual eradication of selfish, malicious … emotional dispositions, and thereby of the very psychical ability of the corresponding behaviors, [like] killing others—​ even if with the justifying epithet of “enemies”—​, inflicting … wounds, and causing others harm, as well as about instilling, developing, and strengthening caritative emotional dispositions and thus creating the mental necessity of good, merciful, compassionate, etc., behaviors. 1925[1913]: 53–54 This visionary and perhaps utopian ideal endows Petrażycki’s conception of legal policy with a certain religious and natural-​law flavor (Rudziński 1976: 123; Gorecki 1975: 117; Wróblewski 1993: 386; Zyzik 2015) that may seem inconsistent with his emotivism. When presenting his vision of legal policy, Petrażycki referred approvingly to the New Testament’s treatment of love as indicated in St. Paul’s first letter to the Corinthians (1 Cor. 13; Petrażycki 1893–​1895, vol. 1: 340) and declared love to be, “from the point of view of practical reason, the supreme ideal of conduct,” and “from the point of view theoretical reason, the supreme

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truth” (1968[1896–​1897]: 43–​44). No less important, Petrażycki also underscored the close connection between his policy of law and the science of natural law (Motyka 1997; Zieliński 2007: 135–​152). Indeed, in his Theory of Incomes, he stated that the birth of the science of legal policy can be seen as a revival of natural law (Wiedergeburt des Naturrechtes, 1893–​1895, vol. 2: 579, cf. also 1925[1913]).25 In Poland, the development of a scientific legal policy was mainly propounded, though not without opposition (Ehrlich 1965, recently, Morawski 2008, cf. Staśkiewicz 2014), by followers of Jerzy Lande.26 Biernat and Zirk-​Sadowski have pointed out that legal policy “has always been a ‘Polish speciality’ in jurisprudence generally” (Biernat and Zirk-​Sadowski 2008: 12). In this area, there appeared two options: one connected with Marxist theory (Borucka-​Arctowa 1975[1967]: 40; Opałek 1962: 31; Seidler 1985: 41–​59; and Wróblewski 1985, 1989: 34 ff.), the other of a non-​Marxist character, represented by Podgórecki. Both of them were linked to the Petrażyckian legacy. Proponents of the first option favored a maximalist version of policy of law, connecting it with the Marxist theory of social development, which they asserted was the only theory capable of delivering appropriate premises for it (Opałek 1962: 36). At the same time, they emphasized the superiority of Petrażycki’s concept of policy of law over, for example, that of Roscoe Pound. Among other things, the Marxists saw this superiority in the connection of Petrażycki’s policy of law with a vision of social development (Król 1974: 21; Czepita 1977, 1978: 116)—​ despite their disagreement with Petrażycki’s vision. A different approach is represented by Podgórecki. First, Podgórecki praised Petrażycki for being “the only scholar to develop the sociotechnical point of view in a fully systematic way—​especially in his concept of legal policy” (Podgórecki 2016: 167, cf. 1990: 63; contra 1974: 241); a point of view that he followed, at least in principle. Second, he maintained that Petrażycki “postulated a ‘renaissance of natural law’ ” (Podgórecki 1999b: 643). However, Podgórecki was far removed from Petrażycki and the Marxists’ prophetic thinking as well as from linking the science of legal policy to any philosophy of history, including the Petrażyckian one. Therefore, contrary to Petrażycki and the Marxists, Podgórecki opted for a technicist approach to the science of legal policy; an approach that dismissed the issue of its ultimate goals. According to Podgórecki [l]‌egal policy as a science of rational social change, obtained by means of law, based on generally accepted social values and on the store of knowledge about social behavior, is concerned with formulating directives for the planning and realization of social change. 1974: 242–​243; cf. also 1971: 444 A legal policy thus conceived is mainly concerned that legal consequences depart as little as possible from the lawmaker’s aims. The lawmaker’s positive or negative evaluation of these aims does not, Podgórecki claimed, come within the

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province of science because science may be used for purposes that are subject both to approval and disapproval (Podgórecki 1962b: 166). For him [a]‌bill may be considered a good job from the legal-​political standpoint, at the same time condemnable because of ends it serves … Such a bill should be condemned, and the object of the condemnation would be the use made of legal policy, but not the science itself. Legal policy as a practical science can be applied to right as well as wrong ends. The indispensable condition for lucid reflection on the effectiveness of law is the reduction of the evaluating approach, which persistently blurs the scientific character of legal policy. 1974: 249–​250 A different approach has been taken by Podgórecki’s student, Jerzy Kwaśniewski. Sharing Petrażycki’s view of also applying the principle of adequacy in the practical sciences (Petrażycki 1978),27 Kwaśniewski claimed that the principle disputes Lande and Podgórecki’s belief in the neutral character of legal policy. Accordingly, it is possible to construct a system of scientific practical knowledge that is adequate for achieving any goal. However, the adoption of any goal automatically determines the scope of specific (intermediate) goals and, thus, the scope of the … propositions that will become part of that system of knowledge. Kwaśniewski 1975: 210 For a legal policy to be adequate, its goal must be predetermined. Articulating the goals is indispensable to formulating the subject-​matter of a given legal policy and to constructing it efficiently. As Kwaśniewski notes, “the goals of legal policy determine both … the research issues and the research strategy” (ibid.). While both Petrażycki and Podgórecki made important legal-​ political observations concerning the application of law, their legal policies were generally law-​making policies. Podgórecki examined various legal and extra-​legal factors that affect the effectiveness of legal regulations and formulated both general principles and the techniques and concrete directives that derive from them (1957c, 1974: 243).28 In a Petrażyckian spirit, Podgórecki also saw links between legal policy and both social engineering and praxeology. Notably, Podgórecki maintained that legal policy should take into account the theoretical results of these latter sciences (1974: 248). Petrażycki’s call for a legal policy and his idea of adequacy inspired Podgórecki to develop sociotechnics (inter alia, 1990, see also Frieske 2009; Afeltowicz and Pietrowicz 2012) and, more generally, practical sciences (Podgórecki 1962a and 1975b).29

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Concluding Remarks Petrażycki’s socio-​legal ideas continued to be Podgórecki’s most important point of reference even after he left Poland in the late 1970s. This is evident in his studies on the typology of legal systems, legitimacy, and human rights (Podgórecki 1991a: 99 ff, 1991c), where the official/​intuitive law distinction plays an important role. It should be noted that Podgórecki, likely inspired by Jan Gorecki (1987), was one of the first to propose a sociology of human rights (Podgórecki 1991a: 101–​118, 1991c) and to recognize Petrażycki as a theorist of human rights (2016: 38, cf. Yeroshkina and Timoshina 2004; Fittipaldi 2015). Podgórecki frequently considered it “appropriate to mention … that Petrażycki was the first who formulated the idea of law which informally … regulates human behavior” and only “due to the complicated circumstances (historical, as well as personal) [is] the idea of informal (unwritten, customary, folk, de-​facto) law attributed to Ehrlich” (Podgórecki 1999a: 22; 2016: 233). He always considered himself Petrażycki’s intellectual grandson (Kojder 2009: 52), that is, one of his second-​generation followers (Podgórecki 1999b: 643), and highlighted his mentor’s significance for the sociology of law. As Podgórecki’s student and then collaborator, Andrzej Kojder noted: Anyone who entered Adam Podgórecki’s spacious office, filled with thousands of papers and books, at the Department of Sociology and Anthropology at Carleton University of Ottawa, could not miss the large portrait of Leon Petrażycki, hung just opposite the entrance door. The right corner of the portrait was covered by a small photograph of Maria Ossowska and a postal stamp with an image of Tadeusz Kotarbiński on it. To Podgórecki, these all represented his homeland, his caring spirits from across the ocean, the three most important figures in his intellectual and scholarly life. Kojder 2009: 37 The relative size of these three images is significant. Their proportion mirrors the role of the three scholars in Adam Podgórecki’s work or at least Petrażycki’s primary significance in this respect. This is why Klaus Ziegert (1977: 171) states that “we have to begin with Petrażycki in order to understand Podgórecki.”

Notes 1 This essay is based upon the writer’s book under preparation Challenging Legal Orthodoxy: Petrażycki, Polish Jurisprudence, and the Quest for the Nature of Law (Motyka 1993, Polish version), which in turn is an updated English version of his monograph on Petrażycki’s influence on Polish theory and sociology of law. On the relations between Petrażycki and Podgórecki, see also Motyka (1992) and (1999). 2 Fortunately, after 1956, the vulgar condemnation and holistic rejection of Petrażycki’s theory was replaced by the “critical analysis” aiming at “discovering the positive and negative elements” of his theory (Wróblewski 1979: 270). Each of the participants in

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Lande’s seminar published at least one paper devoted to Petrażycki’s theory. In 1981, during the Solidarity revolution in Poland, Seidler described Petrażycki as the greatest Slavic philosopher of law in the twentieth century. and wrote that Our knowledge about the culture-​generating role of law, about its integrating and educational functions, will never again be either superficial or naive. It had to become more profound and weighty because there was a man called Leon Petrażycki.

Seidler 1981: vi 3 As Kurczewski writes (2013: 80–​81): Kotarbiński and Ossowska held a great deal of respect for Petrażycki, not only due to his liberal political views (his struggle against tsarist absolutism, anti-​Semitism, and the discrimination of women) but also because of Petrażycki’s theoretical nonconformism that derived from kindred philosophical presumptions of a positivist character. So, when Podgórecki moved from Kraków to Warsaw to find an academic position at Maria Ossowska’s Chair in the History and Theory of Morals, he was keeping within the same intellectual climate that was ruling the Polish academia, mostly attempting to oppose both official orthodoxies: the Marxism taught in schools and universities run by the communist party-​state, and the Catholic philosophy allowed a safe haven by the communists in the Church’s seminaries and the Catholic University of Lublin.





It should be noted, however, that at the Catholic University of Lublin Petrażycki’s theory was held in high regard, and not only because his St. Petersburg’s student Michał Orzęcki taught there (1921–​1925). Some elements of his psychological theory of law were approvingly referred to particularly by the neo-​Thomist Czesław Martyniak, who was killed along with other Lublin intellectuals by the Germans in 1939, as well as by his disciple Jerzy Kalinowski, who in 1958 left Poland for France where he earned world-​wide acclaim in the field of deontic logic (Motyka 1993: 43–​44, 68, 79). It was Hanna Waśkiewicz (1919–​1993), Kalinowski’s successor at the Chair of Philosophy of Law at Lublin, who produced the first study on Jerzy Lande’s legal theory (Waśkiewicz 1957),which was completely ignored by his students, and moved the present writer, her student, to undertake research on Petrażycki’s influence on Polish theory and sociology of law (Motyka 1993). 4 It is worth of noting that while in Poland, and even after he left the country in 1977, Podgórecki was consistently subjected to various unpleasant actions by the communist security service. See Wicenty (2010) and (2013). 5 On Petrażycki’s principle of adequacy, see Kotarbiński (1975) and Fittipaldi (2016b: 444–​ 447). (See also Chapter 5, in this volume and the Glossary. Parenthesis by eds.) 6 On this distinction, see Chapter 5, in this volume. (Note by eds.) 7 As to whether Petrażycki saw sociology of law as a non-​redundant discipline, see Chapter 5, in this volume. (Note by eds.)

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8 In 1936, Petrażycki developed a theory on the interaction between societies at different stages of development and distinguished between complementary and noncomplementary stages. According to him, only interactions between societies with complementary stages of development are capable of boosting economic growth. (Note by eds.) 9 Petrażycki spoke of the organizational and distributive functions of law, on the one hand, and of its motivational and educative effects, on the other (Petrażycki 2011[1909–​ 1910]: 122 and 93, respectively). While presenting Petrażycki’s theory, Podgórecki discusses, with approval, those functions and effects, both of which he refers to as functions (Podgórecki 1980–​1981: 192; 2016: 39). 10 According to Petrażycki, all norms, including legal norms, may have the most diverse contents. This is the only characteristic that Petrażycki’s value-​free concept of law has in common with the concepts of law proposed by the legal positivists. However, this does not mean that he agreed with the German legal scholar Karl Magnus Bergbohm about the validity of even extremely unjust and inhumane laws. He simply did not deal with this issue, as he regarded it as belonging to legal dogmatics and not to an empirical theory of law. On Petrażycki’s legal antipositivism, see Walicki (1987) and Wróblewski (1993). 11 As early as 1893–​1895, Petrażycki wrote that “coercion and protection are not essential to the concept of law” (471). On this subject, see Timoshina (2016: 533, fn. 12 and 13). 12 Here Podgórecki followed Petrażycki’s usage of this term. 13 We disregard all reservations about the ontologically heterogeneous character of the classes of phenomena those conceptualizations select (e.g., official law along with the law approved in certain social groups). On the hybrid character of law, cf. Karpiński (1975: 70). 14 Cf. a similar comment by Tamanaha (2000: 304) regarding Boaventura de Sousa Santos’s legal pluralism: It is also not clear what is gained, either analytically or instrumentally, by appending the label “law” to the informal, unwritten normative relations within the family … [T]‌here is a political cost. Consider the society where the culture tacitly approves wife beating, while the state law makes it illegal … This phraseology should give discomfort to opponents of domestic violence, for the reason that the term “law” often possesses symbolic connotations of right. While Tamanaha’s comment may appeal to feminist legal scholars, some feminists, for analytical as well as instrumental and demystifying reasons, find Petrażycki’s approach—​ particularly his remarks on the family microlegal system—​insightful. See especially the works of Carol Weisbrod, who believes that “feminist jurisprudence may wish to explore the possibilities of Petrażycki’s psychological theory of law” (1990: 1011; 2004: 23–​24, 74, 81–​82). Additionally, a feminist representative of the youngest generation of Podgórecki’s Polish students, Małgorzata Fuszara, refers to Petrażycki’s (1919[1907]) call for women’s rights (Fuszara 1999: 114–​115, 2009, 2010: 372–​373). (For a radicalization of Petrażycki’s conceptualization of law as any sort of imperative-​ attributive phenomenon, see Chapter 7, in this volume. Parenthesis by eds.) 15 Like Petrażycki and Lande, Podgórecki regarded legal-​ dogmatic thinking as the main cause of the fact that law is narrowly conceived as genetically and functionally connected to the state. (See entry “legal dogmatician,” in Glossary. Parenthesis by eds.).

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16 Immediately thereafter Podgórecki added that, “[f]ormalized norms prescribed for different occasions among different social strata with respect to the distribution of duties and claims work … towards unifying and integrating the given social system” (Podgórecki 1975a: 41, 1976: 54, emphasis added). This notwithstanding, 20 years later Podgórecki expressly wrote that law’s essence should not be sought in features such as formality (1999a: 18). 17 “Only this tetrad of duties and rights makes up the law” (1974: 272). 18 On the distinction between practical and theoretical sciences, and on the principle of adequacy, see Chapter 5. (Note by eds.) 19 Petrażycki (2011[1909–​1910]: 75) expressly mentioned a madman: for the concept of law herein established, and for bringing the corresponding psychic phenomena thereunder, it is of no significance whatsoever whether the imperative-​attributive judgments, norms, and the like are rational in content, or irrational, absurd, superstitious, pathological, or even the ravings of a madman. 20 In his last presentation of this hypothesis, Podgórecki extensively quotes its “apt summary” by A. Javier Treviño (Podgórecki 2016: 232–​233;Treviño 1996: 329, cf. Luhmann 2013: 235–​236). 21 This point was made also by other scholars. See, e.g., Lande (1975[1952]) and Borucka-​ Arctowa (1975[1967]: 27–​29, 1974a, 1974b). 22 Petrażycki also discussed other types of adaption: “egocentric” (or individual) and “phylocentric” (or species) adaptation (Ossowski 1935: 45). Due to space limitations, I cannot discuss them here. 23 See entry “love,” in Glossary. (Note by eds.) 24 The term and the idea of “legal policy” and even “civil law policy” were known in German (Heinrich Arhens) as well as in Russian (Sergei Muromtsev) and Polish (Franciszek Kasparek) scholarship, even before Petrażycki’s work (see Groszyk and Korybski [1981: 1] and Babb [1937: 798]). 25 In this context, a description of Petrażycki’s conception of law-​making as “purely instrumental” (Brożek and Zyzik 2012: 77) seems questionable. 26 Ewa Kustra (1980: 25) maintained that “Petrażycki’s popularity and that of his school resulted in underestimating Bentham’s contribution to this field.” 27 On the Petrażyckian concept of “practical science,” see Glossary. (Note by eds.) 28 These issues were also discussed by Polish Marxist legal theorists, particularly by Jerzy Wróblewski, who attempted to construct a theory of rational law-​making (see 1985 and 1989, ch. 5). 29 He also “led [sociotechnics] to its institutionalization in the form of the ISA Research Committee on Sociotechnics (1972), over which he presided for many years” (Sułek 2010: 340). (On the distinction between theoretical and practical sciences in Petrażycki, see Chapter 5. Parenthesis by eds.)

References Afeltowicz, Łukasz, and Krzysztof Pietrowicz, 2012. Socjotechnika Adama Podgóreckiego w perspektywie porównawczej. Roczniki Historii Socjologii, 2: 39–​71. Babb, Hugh W., 1937. Petrazhitskii: Science of Legal Policy and Theory of Law. Boston University Law Review, 17: 793–​829.

64

65

64

Leon Petrażycki and Adam Podgórecki  65

Banaszkiewicz, Bolesław, 2015. Polnische Rechtsphilosophie der Zwischenkriegszeit. In Angelika Nußberger and Caroline von Gall (eds.) Rechtsphilosophisches Denken im Osten Europas. Tübingen: Mohr Siebeck. Baum, Karl B., 1967. Leon Petrażycki und seine Schüler. Der Weg von der psychologischen zur soziologischen Rechtstheorie in der Petrażycki-​gruppe. Berlin: Duncker & Humblot. Biernat,Tadeusz, and Marek Zirk-​Sadowski, 2008. Politics of Law and Legal Policy. Introduction. In Tadeusz Biernat and Marek Zirk-​Sadowski (eds.), Politics of Law and Legal Policy. Between Modern and Post-​Modern Jurisprudence. Warsaw: Wolters Kluwer. Borucka-​ Arctowa, Maria, 1974a. Leon Petrażycki (1867–​1931). Polish Perspectives, 17, 11: 40–​50. Borucka-​ Arctowa, Maria, 1974b. Poglądy socjologiczne Leona Petrażyckiego. Studia Socjologiczne, 1: 5–​32. Borucka-​Arctowa, Maria, 1975[1967]. O społecznym działaniu prawa. German translation Die gesellschaftliche Wirkung des Rechts. Berlin: Duncker & Humblot. Borucka-​Arctowa, Maria, Kazimierz Opałek, and Konstanty Grzybowski, 1955. Działalność naukowa zespołu katedr teorii państwa i prawa oraz prawa państwowego w latach 1945–​ 1954. Zeszyty Naukowe Uniwersytetu Jagiellońskiego. Prawo, 2: 155–​168. Brożek, Bartosz, and Radosław Zyzik, 2012.The Theory and Practice of Lawmaking.A Polish Perspective. In Krzysztof Wojtyczek (ed.), The Public Law: Twenty Years After. The Public Law after 1989 from the Polish Perspective. London: Esperia Publications Ltd. Connelly, John, 2000. Captive University. The Sovietization of East German, Czech, and Polish Higher Education, 1945–​1956. Chapel Hill, NC and London: The University of North Carolina Press. Czepita, Stanisław, 1977. Koncepcja polityki prawa Leona Petrażyckiego a koncepcje współczesne. Państwo i Prawo, 7: 46–​56. Czepita, Stanisław, 1978. Metodologiczna charakterystyka ewolucji koncepcji polityki prawa Leona Petrażyckiego. Zeszyty Naukowe Wyższej Szkoły Pedagogicznej w Szczecinie, 27: 99–​120. Czepita, Stanisław, 1992. Theory of Law and Legal Policy in the Works of Leon Petrażycki. In Peter Koller et al. (eds.), Theoretische Grundlagen der Rechtspolitik. Stuttgart: Franz Steiner Verlag. de Azevedo, Juan L. 1948. The Eidetics and Aporetics of the Law. In Luis Recasens Siches et al. (eds.), Latin-​American Legal Philosophy, with an Introduction by J.L. Kunz. Cambridge, MA: Harvard University Press. Ehrlich, Stanisław, 1965. O tzw. dogmatyce prawa. In Stanisław Ehrlich (ed.), Studia z teorii prawa. Warsaw: Państwowe Wydawnictwo Naukowe. Fittipaldi, Edoardo, 2015. Love, Anankasticity and Human Rights: The Perspective of a Petrażyckian Continental Legal Realism. In Piotr Szymaniec (ed.), Zasada proporcjonalności a ochrona praw podstawowych w państwach Europy. Wałbrzych: Wydawnictwo Państwowej Wyższej Szkoły Zawodowej im. Angelusa Silesiusa w Wałbrzychu. Fittipaldi, Edoardo, 2016a. Jerzy Lande. In Enrico Pattaro and Corrado Roversi (eds.), Legal Philosophy in the Twentieth Century:The Civil Law World. Berlin: Springer. Fittipaldi, Edoardo, 2016b. Leon Petrażycki’s Theory of Law. In Enrico Pattaro and Corrado Roversi (eds.), Legal Philosophy in the Twentieth Century: The Civil Law World. Berlin: Springer. Fittipaldi, Edoardo, and Elena V. Timoshina, 2017. Theory of Custom, Dogmatics of Custom, Policy of Custom: On the Threefold Approach of Polish-​ Russian Legal Realism. Ratio Juris, 30, 1: 105–​122.

6

66  Krzysztof Motyka

Frieske, Kazimierz W., 2009. Adama Podgóreckiego próby racjonalizowania świata. In Jerzy Kwaśniewski and Jan Winczorek (eds.), Idee naukowe Adama Podgóreckiego. Warsaw: IPSiR UW, PTS. Fuszara, Małgorzata, 1999. Feminist Sociology of Law. Prace ISNS. Proceedings of IASS, No 2: Sociology of Law: 114–​140. Fuszara, Małgorzata, 2009. Leon Petrażycki on Women’s Rights. Societas/​Communitas, 1, 7: 37–​45. Fuszara, Małgorzata, 2010. Citizenship, Representation and Gender. Polish Sociological Review, 4, 172: 367–​389. Giaro,Tomasz. 1995. La “Civilpolitik” di Petrazycki о dell’amore nel sistema decentralizzato. Index. Quaderni camerti di studi romanistici, 23: 97–​157. Giaro,Tomasz. 2016. Petrażycki:The Doctrine of Income. In Serge Dauchy et al., (eds.), The Formation and Transmission of Western Legal Culture: 150 Books that Made the Law in the Age of Printing. Heidelberg and New York, NY: Springer. Goćkowski, Janusz, 1969. O historii socjotechniki. Studia Socjologiczne, 1, 183–​198. Gorecki, Jan, 1975. Social Engineering through Law. In Jan Gorecki (ed.), Sociology and Jurisprudence of Leon Petrażycki. Urbana, Chicago, IL, London: University of Illinois Press. Gorecki, Jan, 1987. Human Rights: Explaining the Power of a Moral and Legal Idea. American Journal of Jurisprudence, 32: 155–​169. Groszyk, Henryk and Andrzej Korybski, 1981. O programie tworzenia nauki polityki prawa Leona Petrażyckiego. Annales Universitatis Mariae Curie-​Skłodowska, Section G, Ius, XXVIII: 1–​35. Hall, Jerome, 1973. Foundations of Jurisprudence. Indianapolis, IN, Kansas City, MO, and New York, NY: The Bobbs-​Merrill Company, Inc. Horvath, Barna, 1971.Timasheff and Lasting Merits of the Petrazhitsky School. Österreichische Zeitschrift für öffentliches Recht, 21: 347–​362. Karpiński, Jakub, 1975. Z zagadnień ontologii prawa. In Jacek Kurczewski (ed.), Prawo w społeczeństwie. Warsaw: Państwowe Wydawnictwo Naukowe: 55–​72. Kelsen, Hans, 1945. GeneralTheory of Law and State. Cambridge, MA: Harvard University Press. Kojder, Andrzej, 1994. Legal Policy:The Contribution of Leon Petrażycki. Polish Sociological Review, 106: 155–​163. Kojder,Andrzej, 1999.Adam Podgórecki’s Vita Activa. Polish Sociological Review, 126: 323–​330. Kojder, Andrzej, 2009. Inspiracje Petrażycjańskie w twórczości Adama Podgóreckiego. In Jerzy Kwaśniewski and Jan Winczorek (eds.), Idee naukowe Adama Podgóreckiego. Warsaw: IPSiR UW. PTS: 37–​52. Kotarbiński,Tadeusz, 1975.The Concept of Adequate Theory. In Jan Gorecki (ed.), Sociology and Jurisprudence of Leon Petrażycki. Urbana, Chicago, IL, London: University of Illinois Press: 17–​21. Król, Małgorzata, 1974. Koncepcje metodologiczne polityki prawa: L. Petrażycki a R. Pound. Zeszyty Naukowe UŁ, Nauki Humanistyczno-​Społeczne, Seria I, 106: 13–​24. Kurczewski, Jacek, 2013. Adam Podgórecki’s Empirical Theory of Law. Societas/​Communitas, 1, 15: 79–​97. Kustra, Ewa. 1980. Racjonalny ustawodawca. Analiza teoretycznoprawna. Toruń: Wydawnictwo UMK. Kwaśniewski, Jerzy, 1975. Polityka prawa jako nauka praktyczna. In Jacek Kurczewski (ed.), Prawo w społeczeństwie. Warsaw: Państwowe Wydawnictwo Naukowe. Lande, Jerzy, 1959[1932]. Leon Petrażycki. In Jerzy Lande and Kazimierz Opałek (ed.), Studia z filozofii prawa. Warsaw: Państwowe Wydawnictwo Naukowe.

6

67

6

Leon Petrażycki and Adam Podgórecki  67

Lande, Jerzy, 1975[1952]. Socjologia Petrażyckiego. Abridged English translation the sociology of Petrażycki. In Jan Gorecki (ed.), Sociology and Jurisprudence of Leon Petrażycki. Urbana, Chicago, IL, London: University of Illinois Press: 23–​37. Luhmann, Niklas, 2013. A Sociological Theory of Law. London: Routledge. Mariański, Janusz, 1984. Postawy zasadnicze i celowościowe w społeczeństwie polskim: fakty, trendy, perspektywy. Collectanea Theologica, 54, 1: 5–​35. Morawski, Lech, 2008. Legal Policy and Courts. In Tadeusz Biernat and Marek Zirk-​ Sadowski (eds.), Politics of Law and Legal Policy. Between Modern and Post-​Modern Jurisprudence. Warsaw: Wolters Kluwer. Motyka, Krzysztof, 1992. Prawo-​socjologia prawa-​polityka prawa. Wątki Petrażycjańskie w twórczości naukowej Adama Podgóreckiego. In Andrzej Kojder and Jerzy Kwaśniewski (eds.), Między autonomią a kontrolą. Warsaw: Uniwersytet Warszawski and Polskie Towarzystwo Socjologiczne: 88–​100. Motyka, Krzysztof, 1993. Wpływ Leona Petrażyckiego na polską teorię i sociologię prawa. Lublin: Redakcja Wydawnictw Katolickiego Uniwersytetu Lubelskiego. Motyka, Krzysztof, 1997. Petrażycjańskie inspiracje I Odrodzenia prawa naturalnego. In Edward Balawajder, Piotr Nitecki, and Arkadiusz Jabłoński (eds.), Ku prawdzie we wspólnocie człowieka i Boga. Studia dedykowane Ks. Stanisławowi Kowalczykowi. Sandomierz: Wydawnictwo Diecezjalne w Sandomierzu: 252–​258. Motyka, Krzysztof, 1999. Adam Podgórecki’s Arguments with Petrażycki. Prace ISNS. Proceedings of IASS, No 2: Sociology of Law: 31–​45. Olivecrona, Karl, 1948. Is a Sociological Explanation of Law Possible?. Theoria. A Swedish Journal of Philosophy and Sociology, 14: 169–​171. Opałek, Kazimierz, 1962. Problemy metodologiczne nauki prawa. Warsaw: Państwowe Wydawnictwo Naukowe. Opałek, Kazimierz, 1983. Zagadnienia teorii prawa w związku z teorią polityki. Warsaw: Państwowe Wydawnictwo Naukowe. Ossowski, Jerzy, 1935. Teorja przystosowania i doboru społecznego. Prace Socjologiczne, 1: 41–​46. Petrażycki, Leon. 1892. Die Fruchtverteilung beim Wechsel der Nutzungsberechtigten. Berlin:Verlag H. W. Müller. Petrażycki, Leon, 1893–​ 1895. Die Lehre von Einkommen. Vom Standpunkt des gemeinen Zivilrechts unter Berücksichtigung des Entwurfes eines bürgerlichen Gesetzbuches für das Deutsche Reich. Berlin: H. W. Müller. Petrażycki, Leon, 1919[1907]. O pol’ze političeskih prav ženščin. Polish translation O prawa dla kobiet. Lwów:Wydawnictwo Polskie (transcript of a speech held at the Russian State Duma, on June 6, 1906). Petrażycki, Leon, 1925[1913]. K voprosu o social’nom ideale i vozroždenii estestvennogo prava. Polish translation O ideale społecznym i odrodzeniu prawa naturalnego. Warsaw: Skład główny w Księgarni Leona Idzikowskiego. Petrażycki, Leon, 1936. O dopełniających prądach kulturalnych i prawach rozwoju handlu. Warsaw: Nakładem Towarzystwa im. Leona Petrażyckiego. Petrażycki, Leon, 1959[1908]. Vveddenie v izučenie prava i nravstvennosti. Polish translation of the 3rd ed. of Wstęp do nauki prawa i moralności. Warsaw: Państwowe Wydawnictwo Naukowe. Petrażycki, Leon, 1959[1909]. Teorija prava i gosudarstva v svjazi s teoriej nravstvennosti. Tom 1. Polish translation Teoria prawa i państwa w związku z teorią moralności. Vol. I. Warsaw: Państwowe Wydawnictwo Naukowe.

68

68  Krzysztof Motyka

Petrażycki, Leon, 1960[1910]. Teorija prava i gosudarstva v svjazi s teoriej nravstvennosti. Tom 2. Polish translation Teoria prawa i państwa w związku z teorią moralności. Vol. II. Warsaw: Państwowe Wydawnictwo Naukowe. Petrażycki, Leon, 1968[1896–​1897]. Vvedenie v nauku politiki prava. Polish translation Wstęp do nauki polityki prawa. Warsaw: Państwowe Wydawnictwo Naukowe. Petrażycki, Leon, 1978. Principle of Adequacy in Legal Policy and Other Teleological Sciences. In Andrzej Kojder, Jacek Kurczewski, and Jerzy Licki (eds.), The Polish Sociology of Law Newsletter.Warsaw:The Polish Sociological Association. Section on the Sociology of Law. Petrażycki, Leon, 2011[1909–​ 1910]. Teorija prava i gosudarstva v svjazi s teoriej nravstvennosti. 2nd ed. Abridged English translation Theory of Law and State in Connection with a Theory of Morality. In Leon Petrażycki (Nicholas S. Timasheff ed.), Law and Morality: Leon Petrażycki, with a new introduction by A. Javier Treviño. Piscataway, NJ: Transaction Publishers. Podgórecki, Adam, 1957a. Co to jest polityka prawa. Przegląd Polski i Obcy, 5–​6: 3–​18. Podgórecki, Adam, 1957b. Krytyka niektórych wadliwości polskiego systemu prawnego. Przegląd Polski i Obcy, 1, 3–​14. Podgórecki, Adam, 1957c. Założenia polityki prawa. Metodologia pracy legislacyjnej i kodyfikacyjnej. Warsaw: Wydawnictwo Prawnicze. Podgórecki, Adam, 1962a. Charakterystyka nauk praktycznych. Warsaw: Państwowe Wydawnictwo Naukowe. Podgórecki, Adam, 1962b. Socjologia prawa. Warsaw: Wiedza Powszechna. Podgórecki, Adam, 1964. Zjawiska prawne w opinii publicznej, Studia socjologiczno-​prawne. Warsaw: Wydawnictwo Prawnicze. Podgórecki, Adam, 1965. Narodziny i rozwój socjotechniki. Studia Socjologiczne, 1: 196–​206. Podgórecki, Adam, 1966a. Three Modifiers of the Operation of the Law. Polish Sociological Bulletin, 1, 24: 38–​47. Podgórecki, Adam, 1966b. Zasady socjotechniki. Warsaw: Wiedza Powszechna. Podgórecki, Adam, 1967. Problem klasyfikacji nauk prawnych. Studia Socjologiczne, 1, 24: 235–​246. Podgórecki, Adam, 1968. The Sociology of Law in Poland. In Renato Treves & Jan Frederik Glastra van Loon (eds.), Norms and Action. National Reports on Sociology of Law. The Hague: Martinus Nijhoff Publisher: 123–​143. Podgórecki, Adam, 1969a. The Categoric and the Teleological Attitudes. Archivum Iuridicum Cracoviense, 7: 61–​79. Podgórecki, Adam, 1969b. Patologia życia społecznego. Warsaw: Państwowe Wydawnictwo Naukowe. Podgórecki,Adam, 1969c. Postawa zasadnicza a postawa celowościowa. In Kazimierz Opałek (ed.), Z zagadnień teorii prawa i teorii nauki Leona Petrażyckiego. Warsaw: Państwowe Wydawnictwo Naukowe: 151–​160. Podgórecki, Adam, 1971. Zarys socjologii prawa.Warsaw: Państwowe Wydawnictwo Naukowe. Podgórecki, Adam, 1973. W poszukiwaniu ogólnej teorii socjologii prawa. Studia Socjologiczne, 4: 121–​140. Podgórecki, Adam, 1974. Law and Society. London and Boston, MA: Routledge & Kegan Paul. Podgórecki, Adam, 1975a. Empiryczna socjologia prawa. In Jacek Kurczewski (ed.), Prawo w społeczeństwie. Warsaw: Państwowe Wydawnictwo Naukowe. English version, Podgórecki 1976. Podgórecki, Adam, 1975b. Practical Social Sciences. London and Boston, MA: Routledge & Paul.

68

69

68

Leon Petrażycki and Adam Podgórecki  69

Podgórecki, Adam, 1976[1975]. Empirical Sociology of Law. International Review of Criminal Policy, 32: 45–​55. Podgórecki,Adam, 1978. Definicja prawa. Prace Instytutu Profilaktyki Społecznej i Resocjalizacji, 3: 19–​27. Podgórecki, Adam, 1980–​1981. Unrecognized Father of Sociology of Law: Leon Petrażycki. Law and Society Review, 15, 1: 183–​203. Podgórecki, Adam, 1984. Social Systems and Legal Systems –​Criteria for Classification. Bulletin of the Australian Society for Legal Philosophy, 8: 84–​104. Podgórecki, Adam, 1990. Sociotechnics: Basic Concept and Issues. Knowledge in Society.The International Journal of Knowledge Transfer, 3, 1: 62–​84. Podgórecki, Adam, 1991a. A Sociological Theory of Law. Milano: Giuffrè. Podgórecki, Adam, 1991b. Une théorie de la société polonaise. Revue d’études comparatives Est-​Ouest, 22, 4: 49–​75. Podgórecki, Adam, 1991c. Toward a Sociology of Human Rights. In Vincenzo Ferrari (ed.), Laws and Rights. Proceedings of the International Congress of Sociology of Law for the Ninth Centenary of the University of Bologna (May 30–​June 3, 1988). Milano: Giuffrè. Podgórecki, Adam, 1996. Reappearance of Ex-​Communist Structures as a Test for the Integrative Theory of Law. Polish Sociological Review, 115: 199–​213. Podgórecki, Adam, 1997. Higher Faculties. A Cross-​ National Study of University Culture. Westport, CT, London: Praeger. Podgórecki, Adam, 1999a. Law as an Instrument of a Good and Efficient Government. Prace ISNS. Proceedings of IASS, No. 2: Sociology of Law: 5–​30. Podgórecki, Adam, 1999b. Petrazycki, Leon (1867–​1931). In Christopher Berry Gray (ed.), The Philosophy of Law: An Encyclopedia. 2nd ed. London and New York, NY: Garland Publishing, Inc. Podgórecki, Adam, 2016. Mega-​Sociology. Warsaw: IPSiR UW. Podgórecki, Adam, and Maria Łoś, 1979. Multi-​Dimensional Sociology. London, Boston, MA, Henley: Routledge & Kegan Paul. Roberts,Thomas, 2005. Legal Positivism and Scottish Common Sense Philosophy. Canadian Journal of Law and Jurisprudence, 18, 2: 277–​306. Rozmaryn, Stefan, 1948. Metodologiczne podstawy nauki o prawie i państwie. Demokratyczny Przegląd Prawniczy, 4, 5: 8–​15. Rozmaryn, Stefan, 1949. Prawo i państwo, Demokratyczny Przegląd Prawniczy, 5, 11: 7–​23. Rudziński, Aleksander W., 1976. Petrazycki’s Significance for Contemporary Legal and Moral Theory. American Journal of Jurisprudence, 21: 107–​103. Sadurski,Wojciech, 1982. Polish Legal Theory: Past and Present. Sydney Law Review, 9: 589–​604. Schiff, David, 1981. N. S.Timasheff ’s Sociology of Law. Modern Law Review, 44, 4: 400–​421. Seidler, Grzegorz L., 1946. O istocie władzy państwowej. Kraków: Książnica. Seidler, Grzegorz L., 1947. Rozważania nad normą ustrojową. Kraków: Książnica. Seidler, Grzegorz L., 1950. Psychologizm w nauce prawa. Państwo i Prawo, 8–​9: 9–​28. Seidler, Grzegorz L., 1981. Preface. Annales Universitatis Mariae Curie-​Skłodowska, Sectio G, Ius, XXVIII,V–​VI. Seidler, Grzegorz L., 1985. Rechtssystem und Gesellschaft. Frankfurt am Main, Bern, NewYork, NY: Peter Lang. Schiff, David, 1981. N. S. Timasheff ’s Sociology of Law. Modern Law Review, 44, 4: 400–​421. Staśkiewicz, Wiesław, 2014. Wykładnia konstytucji w kręgu ideologii. In Tomasz Stawecki and Jan Winczorek (eds.), Wykładnia konstytucji. Inspiracje, teorie, argumenty. Warsaw: Lex a Wolters Kluwer business.

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Stone, Julius, 1946. The Province and Function of Law. Law as Logic, Justice and Social Control. A Study in Jurisprudence. Sydney: Associated General Publications Pty. Ltd. Sułek, Antoni, 2010. “To America!” Polish Sociologists in the United States after 1956 and the Development of Empirical Sociology in Poland. East European Politics and Societies, 24, 3: 327–​352. Tamanaha, Brian, 2000. A Non-​Essentialist Version of Legal Pluralism. Journal of Law and Society, 27: 296–​321. Timoshina, Elena V., 2016. Max Lazerson’s Psychological Theory of Law. In Enrico Pattaro and Corrado Roversi (eds.), Legal Philosophy in the Twentieth Century: The Civil Law World. Dordrecht: Springer. Treviño, Javier A., 1996. The Sociology of Law: Classical and Contemporary Perspective. NewYork, NY: St. Martin’s Press. Walicki, Andrzej, 1987. Legal Philosophies of Russian Liberalism. Oxford: Clarendon Press. Waśkiewicz, Hanna, 1957. Teoria prawa prof. Jerzego Landego (próba charakterystyki). Roczniki Filozoficzne, 5, 4: 271–​302. Weisbrod, Carol, 1990. Practical Polyphony: Theories of the State and Feminist Jurisprudence. Georgia Law Review, 24: 985–​1018. Weisbrod, Carol, 2004. Butterfly, the Bride: Essays on Law, Narrative, and the Family. Ann Arbor, MI: University of Michigan Press. Wicenty, Daniel, 2010. Trzy dekady wobec SB: nieznany wymiar biografii Adama Podgóreckiego. Prace IPSiR UW, 15: 199–​254. Wicenty, Daniel, 2013. Wokół projektu biografii Adama Podgóreckiego: wyzwania koncepcyjne, metodologiczne i społeczne. Przegląd Socjologii Jakościowej, 9, 3: 82–​10. Woleński, Jan, 1985. Filozoficzna szkoła lwowsko-​warszawska. Warsaw: Państwowe Wydawnictwo Naukowe. Wróblewski, Jerzy, 1979. Teaching Jurisprudence in Poland: from Petrażycki to Marxist Theory. In Alessandro Giuliani and Nicola Picardi (eds.), L’Educazione giuridica. Vol. II. Profili storici. Perugia: Libreria Editrice Universitaria: 258–​276. Wróblewski, Jerzy, 1985. Teoria racjonalnego tworzenia prawa. Wrocław: Ossolineum. Wróblewski, Jerzy, 1989. Contemporary Models of the Legal Sciences. Wrocław: Ossolineum. Wróblewski, Jerzy, 1993. Philosophical Positivism and Legal Antipositivism of Leo Petrażycki. In Werner Krawietz and Jerzy Wróblewski (eds.), Sprache, Performanz und Ontologie des Recht. Festgabe für Kazimierz Opałek zum 75. Geburtstag. Berlin: Duncker & Humblot. Yeroshkina, Maria A., and Elena V. Timoshina, 2004. Antropologo-​ ontologičeskoe obosnovanie prav čeloveka v psihologičeskoj teorii prava L. I. Petražickogo: metodologičeskij aspekt. In Dženevra Lukovskaja (ed.), Prava čeloveka: Voprosy istorii i teorii: Materialy mežvdunarodnoj naučno-​teoretičeskoj konferencii (St. Petersburg, April 24, 2004). St. Petersburg: Izdatel’stvo SPbGU. Ziegert, Klaus A., 1977. Adam Podgórecki’s Sociology of Law: The Invisible Factors of the Functioning of Law Made Visible. Law and Society Review, 12: 151–​180. Zieliński, Marcin, 2007. Der Transfer juristischen Gedankenguts innerhalb Europas am Beispiel der Versuche der Modernisierung des Zivilrechts im ausgehenden Zarenreich. Hamburg: Verlag Dr. Kovač. Zyzik, Radosław, 2015. Ideał społeczny w polityce prawa Leona Petrażyckiego, Perspektywa ewolucyjna. Archiwum Historii Filozofii i Myśli Społecznej, 60: 175–​188.

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4 SCIENCE, ART, AND THE PLURALIST LEGACY OF LEON PETRAŻYCKI Carol Weisbrod*

Introduction From the time of the publication of Hugh W. Babb’s English translation of Law and Morality in 1955 (Petrażycki 2011[1955]),1 problems of rendering Petrażycki in English have been discussed.2 Of course, Petrażycki’s idea that law existed in the individual human mind went against the positivist definition of law as emanating from the state. But there was more to it than that. The English speakers, Andrzej Kojder writes, had to “rely primarily upon limited and incoherently translated sections of Petrażycki’s work in one volume, along with primarily overly narrow or overly general first authoritative secondary sources” (2006: 352–​3). Babb’s Translator’s Note refers to the “almost incredibly repetitious prolixity” of Petrażycki’s writing, which he thought would be repellant to a Western reader (1955: xxxix; 2011[1955]: li).3 Petrażycki’s language is referred to by Andrzej Walicki as “difficult and somewhat clumsy” (1986: 242).4 One reviewer of the 1955 version of Law and Morality (2011[1955]) referred to it as “gobbledygook” (Campbell 1956: 438).5 But there is an issue in the writing for English speakers that raises a quite different problem. This relates to the intellectual environment within which Petrażycki worked, and which the English-​speaking audience does not ordinarily share. Law as a “science” meant specific things in Petrażycki’s civil law world. The common law tradition, which sometimes used that language, referred to different and less uniform things. Petrażycki was attempting to formulate a universal statement of ways of thinking about law, defining law, and researching law in society. It was intended to be applicable to all times and places (Motyka 2007). But he, like everyone, was positioned in a particular time and place. His life was complicated. He was a Pole DOI: 10.4324/9781351036740-6

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working in Russia, a Catholic in a country that was Orthodox. Later, he taught in Warsaw in an environment which had its own difficulties. These things are often mentioned. His position as a master of the civil law tradition is less discussed, in part, I assume, because much of the commentary on Petrażycki comes from people to whom his way of thinking is familiar. But to the common law jurist, it is less recognizable and less comfortable.

Science American law professor Sidney Post Simpson, reviewing Interpretations of Modern Legal Philosophies6 (Sayre 1947) in 1948 wrote that interest in Petrażycki’s work “is explainable not so much in terms of the present popularity of a Jurisprudence of Escape as the resolute piety of some of his disciples.” He concluded that “the usefulness of these elaborate distinctions either for the common law or for general jurisprudence would seem open to question even if they were not so dogmatically stated” (Simpson 1948: 399).7 Simpson’s comments are not those of a formalist.8 He was very interested in working on law and the social sciences. A student of Roscoe Pound’s in 1919–​ 20, he was an admirer of Pound’s work on social engineering. Simpson credited Petrażycki for his emphasis on the importance of the psychological approach but thought, finally, that it was handicapped by having been written before Freud. Nonetheless, Simpson’s conclusion, as quoted, suggested a very limited utility for Petrażycki’s approach, at least for common law scholarship and law reform. Another critical American review came thirty years later, from a sociologist interested in law and the social sciences. In 1978, Philippe Nonet reviewed Jan Gorecki’s Sociology and Jurisprudence of Leon Petrażycki (1975). Like Simpson, Nonet was not a formalist. Rather he was interested in the sociology of law and wrote widely on the subject. In his view, Petrażycki was a “creative, if not eccentric thinker” (Nonet 1978: 477). He saw the work not as a presentation of serious theoretical analysis, but rather as a “long and relentless polemic,” in the tradition of many of the American realists. The target was the conventional language of the jurists and their idea of law. The work, Nonet thought, belonged “to a familiar genre of ‘theoretical’ writing, the programmatic manifesto.” He classed Petrażycki with Eugen Ehrlich, François Gény, Roscoe Pound, the legal realists, and much of the law and society movement of his time. All of these had the “intellectual aim of furthering the empirical study of legal phenomena” and also the “rescue of legal institutions from the rigidity and formalism of an earlier era.” Petrażycki’s writing was, for Nonet, “[a]‌n agenda of legal reform … couched as a call for scientific inquiry, a call suffused with passion” (ibid.). Nonet was critical on several specific points, including the emphasis on the educational strengths of law (associated with “conditioning” which would appeal only to advocates of B.F. Skinner). Further, Nonet thought, Petrażycki “found it difficult to accommodate conflict and self-​serving claims in a conception that

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made ‘active and universal love’ the end of moral evolution and legal engineering” (479). This was, he thought, associated with a “profound aristocratic disdain for th[e] lower side of mankind” (ibid.).9 Petrażycki believed that “[j]‌urisprudence resembles mathematics in that the scope of its concepts is fixed precisely. Its thinking follows the strict methods of deductive logic and its propositions can be proven conclusively” (2011[1955]: 145).10 The contrast was to moral science, clouded, and inexact (ibid.). In the discussions of a projected official law for Russia, at the time of the First Duma in 1906, Petrażycki argued for the continental tradition of an explicit definition of rights, rather than the looser American constitutional idea (Laserson 1950: 470).11 This understanding of jurisprudence—​or legal dogmatics—​as precise and certain is opposed to one of the central insights of American legal realism. This may or may not be a characteristic of all civil law, which is commonly described in terms of German legal theory. Karl N. Llewellyn drew a perhaps overstated contrast between the German schools and the American approach. He described “the general German temper, in all fields, of building a broad premise (often enough half-​mystical) and following it then with rigor into the most untoward conclusion” and contrasted it with “the American temper of empiricism, of case-​to-​case thinking, of loose ad hoc working, of sudden revision of premise whenever a consequence comes to be perceived as unwanted” (1942: 233). Later, Grant Gilmore, in his history of American law, stated, in reference to common law, that “When we think of our own or of any other legal system, the beginning of wisdom lies in the recognition that the body of the law, at any time or place, is an unstable mass in precarious equilibrium” (1977: 110).12 Clearly, this is not the view of German legal science.13 Comparisons between American common law and European civil law approaches were familiar in the United States much before the 20th-​century discussions that contrasted realism with German legal science. Thus, in the mid-​ 19th century an American writing on the civil law offered this recognizable description of the common law: It [the common law] seems to be a mass of irregularities and inconsistencies, which consists rather in particular usages and occasional decisions, than in immutable principles, or in consequences deduced immediately from the rules of natural justice. Legaré 1845[1826]: 112, fn. 13; see, generally, Hoeflich 1986 and 1997 This idea was later summarized by Lord Tennyson when he described the common law as a “Wilderness of single instances” (1891[1864]: 14). The single instances, in the common law system, were evidenced by cases and it is regularly noted that where the common law stresses cases, the civil law stresses statutes. But this is perhaps not as significant as the difference between an

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expectation of certainty and clarity among at least some civilians and an assumption of a certain and perhaps even considerable degree of openness and flexibility among common lawyers, and particularly perhaps American post-​realist common lawyers. Given his training as a civilian and a student and teacher of Roman law, it is perhaps not surprising that Petrażycki’s language is more dogmatic in statement than what we would expect from a lawyer trained in the common law. This is not to say that the proposition that law is a science is unknown in the common law world. In the history of American legal education, the term “legal science” is often associated with the early modern Harvard Law School though it was used much earlier.14 Christopher C. Langdell, the Dean at Harvard, said that law is a science.15 By this, he meant that the study of cases was the data from which principles were to be extracted and organized. The case reports in the books would be the experimental material and the library would be the laboratory.16 Some responded to Langdell by saying “yes,” and some added a “but”: yes, but not an exact science. There was some feeling that Law was as much Art as Science, or even more Art than Science,17 but usually some of each. Even in the time of Langdell, some argued that excess emphasis on precise definitions, however important to civilians and codifiers, was not helpful to law or the study of law.18 The American law professors in the movement called American legal realism were often anti-​conceptual (e.g., Teufelsdröckh [pseudonym] 1938), interested in working with the social sciences on empirical studies. They also frequently doubted the idea that law was centrally about the application of rules.19 By the 1930s, this anti-​formalism was well developed with the American Legal Realists and took the form of some well-​known polemical writing.20 Some of the observations of American realism go back to Oliver Wendell Holmes, Jr. and the aphorism that law is not logic but experience. Further, there was a rejection by a figure as large as Holmes, not only of the importance of logic and “elegantia,” but a public questioning of the study of Roman law itself (Holmes 1897: 475). Roman law was, for centuries, the basis of Continental law study and ultimately the source of much in the Continental codes themselves. By the 20th century, it was hardly studied in the United States. Scholarship and training in Roman law was in considerable decline in England, though some civilians, fleeing Hitler’s Germany, brought some study back to England (see Birks 2004: 265). Discussing the modern decline of study in Roman law in England, Peter Birks noted that many academic lawyers in leading positions have been strongly influenced by American realist jurisprudence and are instinctively hostile to the kind of rationality instantiated in the Institutes. In other words, aspirations to the intellectual order in the form of accurate classification and coherent doctrine strike them as some kind of confidence trick, covertly maintaining vested interests (Birks 2004: 265).

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And thus Birks concluded that while [t]‌he rights and wrongs of [realism] are not now in issue. It is simply a fact that colleagues of a realist persuasion did not and will not favor allocating resources to the Roman style of introduction to law. ibid.21 The approach that Birks referred to was described by the 19th-​ century American lawyer Hugh Legaré in this way: Whatever may be the comparative merits of [the civil law and the common law] considered per se, it is certain that the Civil law has greatly the advantage of ours in the manner in which it has been expounded and illustrated … In comparing what the Civilians have written upon any subjects that have been treated by the English text writers, or discussed in the English courts, it is, we think, impossible not to be struck with the superiority of their truly elegant and philosophical style of analysis and exposition. Their whole arrangement and method—​the division of the matter into its natural parts, the classification of it under the proper predicaments, the discussion of principles, the deduction of corollaries—​everything, in short, is more unanimous and systematic—​everything savors more of a regular and exact science. Legaré 1845[1826]: 110 Petrażycki’s early work was on Roman law and on the German civil code. After his comments on the German civil code, he was sometimes attacked for what was taken as a criticism of German legal science (see Walicki 1986: 218)22 (even though he possibly saw himself as contributing to that tradition). In general, Petrażycki urged for uniformity and precision in the definition of law while noting the impossibility of anticipating every contingency. He put various uncertainties, differences of opinion, and perhaps inevitable conflicts in certain spheres of life, in the category “morals.” In the regulatory aspects of law—​which he called the imperative-​ attributive aspects—​ these uncertainties and conflicts were not admissible.23 A detailed discussion of the differences between common law and civil law was offered by the Yale law professor Mirjan R. Damaska, a native of Croatia who moved to the United States in 1971: In order to gain an understanding of Continental legal grammar, Americans should imagine lawyers of an analytical turn of mind à la Hohfeld at work for a long time, studying the law as it emerged from legal practice. Americans should further imagine that both the analysts’ dissection of law and their generalizations were generally accepted by the legal profession.

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Many rather amorphous American legal concepts would be subjected to rigorous analysis … In the process of analysis the twilight zone of the concepts would be somewhat reduced, sub-​concepts isolated and separately labeled. A richer and more precise legal terminology would appear. Movement would also proceed in the opposite direction, that is, toward the creation of more general, sometimes almost cathedral-​like concepts … These newly created, broad concepts would become accepted as elements of standard legal terminology. Study would then proceed to the relationships between such legal concepts. Damaska 1968: 1365 The references to actual cases, Damaska tells us, are occasional, and almost always generalized. The problem in a case is treated as an illustration “of how the court evolved legal rules, adapted to the solution of the case, from the more general ones found in the code or statute” (1968: 1368). Particular facts are not viewed as important or interesting. When “on a rare occasion the discussion does descend to the level of particular facts, it will be abruptly cut off by the remark that a questio [sic—​eds. note] facti is involved which does not merit further analysis” (ibid.). Damaska’s summary sentence is clear: “The American lawyer would thus discover that, more often than not, where his interest really begins the law teacher’s seems to end” (ibid.). Damaska uses the word “analysis,” and we may note that the common lawyer also works at analysis and is adept at classifications and distinctions. For the common lawyer, however, these efforts are ordinarily for a purpose.24 Why are we asking? What work does this distinction do? Damaska (ibid.: 1368, fn. 8) has a common lawyer asking the question: how would you explain this distinction to a judge?25 Petrażycki’s distinctions and sub-​distinctions are made for the sake of a scientific theory and for the precise conceptualization of particular aspects of human behavior.The lawyer in a common law system makes refined distinctions and does something called analysis, which usually means something different from what the civilian means by the term. For the common lawyer, analysis is usually done for the sake of some specific result in the real world, under some operational system of law, whether it is state law, church law, or club law.26 The common law academic does not make the strict distinction between theory, dogmatics, and policy that marks some of the academic civil law discussion27 and is particularly important in working with the ideas of Petrażycki. American academic work is sometimes focused on policy, sometimes in the sense of proposals for law reform, sometimes in the sense of change in consciousness, or in the understanding of a problem. That idea, a change in understanding, may involve empirical work in a very broad sense: it may be quantitative social science study, or historical inquiry, or, more recently, work relating to literature or narrative as sources of understanding.

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What some refer to as “social engineering” is described by Petrażycki as a “complicated psychic symphony on different strings of the human soul” (2011[1955]: 301). With an image like this, another side of Petrażycki comes to the attention of the reader. His language evokes not Science, but Art.28 Section three deals with descriptions he offers of his methods and the particularities of his understandings of human behavior.

Art Petrażycki wrote as a scientist and is understood that way by those currently most involved with his work. His attempts at definitions and classifications, as much as his emphasis on introspection as “experimental,” all fit with our understandings of the research methods of the sciences. Though his description of lying on a couch thinking through certain problems experimentally evokes the methods of psychoanalysis, it is not clear that Petrażycki knew about Freud’s work. Petrażycki indicated that his method included a variety of sources. [R]‌eading stories, novels, newspaper reports, and the like, containing vivid portrayals of “shockingly” arbitrary conduct, clear and “sacred” rights trampled underfoot, utterly just demands repudiated, and the like; the vivid image of one’s own self under strong temptation to deny and to dispute—​or otherwise to “trample upon”—​the clear and “sacred” right of another, or as a victim of the shockingly arbitrary conduct and violation of law; the services of friends in bringing us (for purposes of the experiment) to the point of legal enthusiasm, or “boiling” and indignation, and so forth; all such experimental means may enable us to observe and to study the relevant psychic experiences particularly characteristic of law. 2011[1955]: 14 Through the method of introspection, Petrażycki wanted to study “shame, pride, ambition, gratitude, injured self-​love, jealousy, and the like” (ibid.: 13). Roger Cotterrell notes that “[r]‌eading Petrażycki’s available writings carefully today, it is hard not to be dazzled by the ambition, imagination, and perceptiveness of his thinking and its rigor over an unusually vast intellectual terrain” (2015: 1). It is the word “imagination” that is striking here. Petrażycki was at least once called an Artist (Meyendorff 1947: 531).29 Speaking of a scientific construction, Timasheff uses the words “beautiful” and “dramatic.”30 Petrażycki was also called a “humanist” (Gorecki 1975: ix) and it is clear that the range of his references (and presumably his reading, though the actual sources are not often identified) is one of his outstanding characteristics. He was not a novelist, but his sense of people in particular situations is notable in a field in which abstractions, stick figures, and sometimes people known by some conventional form (e.g., Hart’s “Rex”) are more common. von Jhering

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in his Law in Everyday Life (1904[1889])31 uses real-​life examples, but he does not suggest the kind of emotional complexity that we find in Law and Morality. Sometimes Petrażycki wrote detailed descriptions, almost novelistic, of the family, of childhood in a comfortable extended family structure. This was the “unique legal world” (2011[1955]: 68) of each family. Sometimes it is not marriage that he is talking about at all but intimate relations.32 Sometimes a story is outlined in a few words as when he sees a party to an unwanted marriage “weeping and sobbing” (173). A legal passion may be felt by a madman, whose intent is criminal (50).33 A man may want a divorce but despite his exertions he cannot get one (172). In Petrażycki’s sense of personal human relations, we see a man who knew that love could become something else (40). Petrażycki’s own biography, his discussion of the Roman law relating to usus (a marriage after cohabitation for a year), his comments on the difference between life relations and legal relations, and his emphasis on consent in modern marriage, all may be read as suggesting that he saw that people might not marry precisely because they did not want the right/​duty relationships, which the state law would impose. Petrażycki also saw that intimacies could product their own rights and duties, also “law” within his definitions. His descriptions of the legal worlds of families, of children, and of serfs are all observed at a notable level of detail and subtlety.34 [F]‌rom the point of view of the psychological theory of law as imperative-​attributive experiences, family and intimate domestic life (regardless of whether or not there are between those participants any bonds officially recognized) is a broad and peculiar legal world which is awaiting investigation: a legal world with innumerable legal norms, obligations, and rights independent of what is written in the statutes, and solving thousands of questions unforeseen therein. Petrażycki 2011[1955]: 68 And some of the distinctions Petrażycki made (e.g., official positive law as against unofficial intuitive law) seem to have operated in his own life, as when we are told that he made provision for his children beyond that which the law would have required (Meyendorff 1947: 532).These descriptions may be seen as Art, particularly if we use Tolstoy’s definition: Art is that human activity which consists in one man’s consciously conveying to others, by certain external signs, the feelings he has experienced and in others being infected by those feelings and also experiencing them. 1995[1897]: 4035 These descriptions are points of entry to story-​telling and narratives, especially from people outside the main power structures, which has recently been

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evident in American legal scholarship (see Abrams 1991, as well as Posner 1997). Petrażycki’s observations, based on introspection and direct observation of people in the real world, are detailed and wide ranging. In the context of the family, Petrażycki outlines the kind of rights he might be thinking about. Some of these are considered with reference to state law, some as part of customary law, and some as intuitive law. The American interest in stories, and particularly outsider stories, was parallel to an interest in legal pluralism, since some of those outsiders were groups that maintained one way or another strong system of control, which could be seen as law. Petrażycki saw a drive toward unification in these different kinds of law—​all of them existing as part of a psychological definition of law. He saw a “unifying tendency” that would develop in “the direction of bringing the legal opinions of the parties into unity, identity, and coincidence” (2011[1955]: 113). The ultimate goal was a world of love, “charity-​ love.” Law is not only the vehicle through which that order will be brought into existence, it will later cease to exist “because the existence of law will then be psychologically inappropriate” (Babb 1938: 810).36 This gets to the question of Petrażycki and pluralist thinking.

The Complex Pluralist Legacy The codes of duelists, the practices of card players,37 and speculations about whether distinctions based on rank will disappear before distinctions based on age, all of these speak to Petrażycki’s life and his time. He read widely, and perhaps some of what he wrote responded, however indirectly, to what he read, what was discussed in his world. For example, we have the story about the student of Petrażycki who followed Tolstoy’s teaching until exposed to Petrażycki’s ideas (Walicki 1986: 256). It is as if Petrażycki, in his own work, was offering a defense of law against the attacks of the anti-​law tradition in Christianity represented by Tolstoy.38 As noted, Petrażycki offers strikingly realistic descriptions of individuals, based, presumably, on introspection, experience, and reading. He is aware of the difference between life relations and legal relations. This, for example, is demonstrated in the case of serfs who retain the intuitive law of their serfdom despite the freedom given to them by Alexander II, leaving open the question of whether other relationships might have the same characteristics. He sees the idea of a “slavish” mentality—​unaware of the possibility of rights claims—​in serfs and children (2011[1955]: 239–​40).39 Some of these issues can be addressed by better education in the family, and only a few are to be dealt with by official positive law. Petrażycki argued that the law of domestic relations, of private intimate relations, should ordinarily be dealt with minimally by the positive state law and should in general be left to legal/​moral regulation outside of state law. He thought it was only in the cases of conflict40 or unusual threats to public order that the apparatus of the state had a role.

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Petrażycki sometimes addressed normative issues directly. While he lists freedom of conscience among the civil liberties, which are rights of citizens, it is unlikely that he envisioned the sort of problems that can arise when, in a national legal system, religious freedom is charged, first, with protecting beliefs and practices and, second, with invoking exemptions from ordinary state law.41 Some have suggested that there is a connection to Vladimir Solovyov42 who was well known in Russia for his views on the importance of love and unity43 (Timasheff (1955: xix; 2011[1955]: xxxi); Walicki (1986) offers more direct comments44). Petrażycki’s relation to pluralist thinking is complex. On the one hand, he insisted on a research agenda that went far beyond the ordinary understandings of state law as the only law. On the other hand, he looked toward ultimate unification, a social order based on active love, beyond law and morality.45 The idea of a future unity has resonances with the civil law background, discussed earlier. The Russian jurist, Alexander Pekelis46 wrote that if someone were compelled to explain the essence of civil law to a common lawyer in one sentence, he could perhaps say that civil law is what common law would have been if it had never known a court of chancery … The picture of conflicting and coexisting jurisdictions is … inconceivable to a Latin or even a German lawyer, who believes in … the uncompromising and sometimes cruel unity of the legal order. 1950[1943]: 72 For Petrażycki, the cruelty would ultimately be eradicated, but the unity would remain. Petrażycki was interested in customary law and noted that the conventional jurisprudence of his time acknowledged customary law despite its lack of commands or orders, definition of concepts, and declarations of abrogation (2011[1955]: 137). A common law legal order might have commands or orders but might well not consider definitions of concepts or declarations of abrogation as central to the arrangement. In looking at customary law, a common lawyer might well be looking for judges and decision-​makers. Petrażycki’s list may reflect his own judgment of what an official legal system should look like, or it may be a description of what was commonly thought to be a civil law legal system. The question is similar to that which has been raised about Petrażycki’s view of the centrality of the official state legal system.47 The general issue of certainty and mathematical precision (which Petrażycki emphasizes in relation to the dogmatics of state law) arises again in relation to the flexibility and discretion that marks administrative law, a prominent feature of many state legal systems. Alexander Pekelis continued his discussion of equity in the context of a 1943 article on administrative law. Noting that most of the objections to administrative law, in both the common law world and the continental, were based on the “extremely great amount of discretion with which [administrative agencies] are

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entrusted,” he also noted that “in common law countries needs of public policy, exigencies of morality and efficiency, are taken into account in the ordinary administration of justice to an extent undreamed of on the European continent” (1943: 24). That means that the corresponding amount of discretion inherent in the system of Anglo-​ American law makes of its enforcement an activity much closer to what in civil law countries has been considered administrative adjudication than to what has constituted administration of justice by the ordinary continental courts. ibid. Pekelis illustrated this with the law of contracts, arguing that while there were no “rights” in Equity, strictly speaking, there was a range of options available to courts in fashioning remedies “unknown to a European court” (1943: 25). This was not government by law if that meant “government by the certainty of law.” At best, he said, it was “government by gentlemen.” By contrast, the European Rechtsstaat was designed “for the very purpose of reducing the human element in the administration of justice to its imaginable minimum” (27). This is not to say that all civil law countries adopted the position of the German codifiers. One exception, for example, was examined by Ernst Rabel (1950) in an article on the German and Swiss codes. In the case of the German code, “Almost every problem was minutely examined with respect to its correct statement, its solutions in the preceding codes, its relationship to other legal problems, its just solution, and the best formulation of the rule to be established” (1950: 266, emphasis in the original).The ambition was to do as much as possible to eliminate uncertainties. Every rule became an integrated part of a closely knit system. The rules in their meaningful connections would take care of practically all major doubts that might arise so long as the essential social, economic, and moral conceptions of the time remained in existence. ibid. The Swiss code went a different way partly because the codifier “was satisfied with broad outlines of the legal institutions, with principles to guide the courts rather than detailed regulations to bind them” (ibid.: 272). Where the choice was “between completeness or smoothness, exactitude or elegance, advice to the lawyer in difficult problems or information to the intelligent common man—the Germans selected the first, the Swiss decided for the second method” (ibid.). In some ways, the Swiss code resembles the approach used in the United States. Thus, the American law professor Philip Jessup, in his work on transnational law,

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wrote of the “frankness of the first article of the Swiss Code,” which “[w]‌e do not in general imitate” (1956: 96–​7).48 The first article provided that the Code applies to all legal questions for which it contains a provision in its term or its exposition. If no command can be taken from the statute, then the judge shall pronounce in accordance with the customary law, and failing that, according to the rule which he as a legislator would adopt. He should be guided therein by approved precept and tradition. ibid. Petrażycki seems to assume that the legislators who will do the work of developing scientific rational policies will not have serious disagreements, presumably because the studies on which their policies will be based will only provide one answer. But the anticipation of unification, the vision of unity, the “beyond law and morality” of the future, leaves a long time in the present and in the immediate future. For the moment, Petrażycki concentrates on the way in which official law might shape intuitive law, and, in reverse, the way in which intuitive law might shape official law. These distinctions, categories, and proposals may continue to be subject to examination by people more qualified than I am to do that work. But when one reads Petrażycki in English on the educational effects of law on individuals, “instilling certain traits and weakening others” (2011[1955]: 301), as Nonet (1978) noted, the idea of the educational function of law taken to this intensity seems problematic.49 Though Petrażycki was certainly aware of the multiplicity of groups, he paid scant attention to how the activity of those groups might limit the impact of the educational efforts of official law.50 In general, there seems to be little acknowledgment of multiple memberships. Petrażycki’s contribution in de-​ emphasizing the law emanating from the state and its agencies is considerable, and there are ways in which he sees the distinctions that animate the current discussions of legal pluralism, though these, at least at the time of the writing of the Law and Morality (2011[1955]), were not his central concern. He makes some critical points with the introductory sentence “certain matters should, however, be borne in mind” (2011[1955]: 296).51 As to churches, he notes that they have law defining their structure, the rights of priests and parishioners, the management of property, and the like—​which may be integrated into official law. He also notes, as a second matter to be borne in mind, the European states’ colonies in which native law (customary law) is acknowledged, and again incorporated into the official state law. In neither case does he acknowledge as he does earlier with reference to customary law, the possibility of a dual legal order, in which the law that he sees as “integrated” in the state system is, from the point of view of the adherents, a law coexisting with the official law. Where he saw dual systems,52 he characterized them as survivals of aspects of life in certain parts of the population (classes, religious, or tribal groups),

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which were part of the state. Ultimately these would, he thought, be eradicated as “inadmissible, barbarian, anti-​cultural and the like.” But while these dual authorities existed, in the tribal mind [holding] tenaciously to certain elements of ancient law … a dual system of law continues to exist, with resulting conflicts and occasional tragedies, and the imposition of more or less cruel punishments (from organs of official power which follow the official law and consider it alone “law”)[.] 2011[1955]: 74 It is in the description of ancient customary law that we see what contemporary pluralism, following John Griffiths (1986),53 sees as “strong” pluralism (e.g., Petrażycki 2011[1955]: 296). This much is a familiar theme in law and society research and work on pluralism. What is not characteristic is Petrażycki’s insistence that the official law framework must be uniform and universal. Petrażycki offers some substantive ideas as to policy: he was a supporter of women’s rights, education in the family, and of the rights of animals. He not only anticipated the eradication of customary law but also spoke of a presumption in favor of the status quo meaning that the unfitness of customary law had to be demonstrated (cf. Fittipaldi and Timoshina 2017). He thought that the privileges of nobility would be erased. He wanted to establish a science of legal policy “dedicated to the working out of the principles of desirable rational law and legislation” (2011[1955]: 223). He does not apparently anticipate the issue that would ultimately become critical in the world of the 21st century, the pluralism that is so intense that we are forced to confront behaviors that are not liberal but also have claims under theories of pluralism.54

Conclusion There is—in Law and Morality—a leap of faith, as well as a strongly positive sense of the direction of history. These may or may not have survived the events of Petrażycki’s life.55 Little of the work he did in Warsaw remains available to us. Looking at Law and Morality at a distance of many decades, one can only wonder how he would have incorporated the facts of the world after 1931—​the year of his death. One problem with classifying Petrażycki is that we no longer operate in the intellectual or academic world in which he worked. It was said of Solovyov that his work was hard to classify, because the “high erudition and eclecticism speak of a by-​gone age, in which the classics, religion, philosophy, and history, as well as contemporary developments were often interpreted as integral parts of an indivisible humanistic whole” (Wozniuk 2000: xxvii). Clearly the same is true of Petrażycki.

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Recent writing classifies Petrażycki as a legal philosopher56 and, currently, more specifically, his work is associated with the sociology of law (see, e.g.,Treviño 2017 and Deflem 2008). As to this, I would note that Petrażycki’s sense of sociology is important here as it seems to root in a European tradition that is distinct from American understandings. Max Rheinstein, another Civilian who worked in the United States, was a student and translator of Max Weber. In his introduction to Weber, he noted that in Europe “the word sociology does not have exactly the same meaning as in America” (Rheinstein 1967[1954]: xviii). In the United States, “sociology is usually meant to refer to that branch of learning which concerns itself with those social groups and relationships of our own modern Western society which are neither politically formalized, nor, primarily, concerned with economic activities” (ibid.). He includes a definition of the fields which was (then) an aspect of the disciplinary divisions in the university. All of this meant that only certain things were left to the sociologist: studies “which have not been preempted by the other branches of the social sciences” (xix). The contrast with Europe was dramatic: In Europe, sociology, … is rather regarded, however, as the science of social relationships in general, or, even more ambitiously, of society in general. Its ultimate question is: What makes society tick? More concretely, the European sociologists try to find out what are the basic phenomena and relationships of society in all its aspects: political, legal, literary, artistic, economic, etc. ibid. That describes the work of Petrażycki. It also can describe the interdisciplinary work of common law academics, the understanding of law of which goes beyond official law. At least two research agendas can be identified.The first, suggested by Petrażycki’s descriptions of the number of settings in which one can find “law,” is being done now, in a variety of ways. This work might be quantitative or qualitative.57 A quite different research agenda is suggested by Philippe Nonet (1978), who saw Petrażycki’s writing as polemical and thought that it should be seen as part of the anti-​formalist legacy as it developed in different countries.58 These are two research agendas, one is classified as law and social science, the other perhaps as intellectual or political history or legal history. Both agendas might well be pursued.

Notes * I am indebted to various people for assistance with this chapter. I would particularly like to thank Edoardo Fittipaldi, Mark Janis, and Richard Kay for helpful discussions of

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the issues addressed here. I also thank Anne Rajotte, of the law library of the University of Connecticut, for her assistance. Errors are my own. This chapter makes no attempt to deal with most of Petrażycki’s theory, even to the extent that I think I understand it. The discussion is based on a distinction between what the work is “about,” and what I take from it. I am relying on English language material. Finally, I want to thank Edoardo Fittipaldi for translating the original Russian titles in the references, and other material in notes 1, 9, 10, 22, 33, 43, 45, 47, 48, and 56. 1 Unlike the other chapters in this volume, this one cites to a book called Law and Morality 2011[1955], which is a compilation and abridgment of two books by Petrażycki. In the other chapters, references are given as 2011[1907] and 2011[1909–​10]. The 1955 compilation, published by the Harvard University Press and used as the basis for a publication in 2011 by Transaction Publishers, remains the standard source available in English, and in English-​speaking countries is regarded as one book. Since Prof. Weisbrod expressly relies on English language material and devotes many pages to its reception history, the citations here are to that one publication rather than to the two English translations contained in it, separately. Page numbering in 2011[1955] corresponds to that in 2011[1907]/​2011[1909–​10]. (Note by eds.) 2 The 1955 compilation of works by Petrażycki was published by the Harvard University Press as part of its 20th Century Legal Philosophy series. The translator was Hugh W. Babb, a professor in the college of business administration at Boston University. Babb’s first work on Petrazycki was published in the Boston University Law Review (1937). He did a number of books on Soviet legal theory, as well as books on business law. For an account of the way in which Babb came to the field of translation from Russian, see Zausner (1948). 3 See also Babb’s comments in his earlier expositions of Petrażycki: “I find it extraordinarily difficult to become oriented in his sphere of thought” (1938: 574). 4 He was referring to the theory of impulsions particularly. Walicki worked in various languages. On this point, he cited the English translation of Hugh Babb. 5 Summarizing a long paragraph in one short sentence, the reviewer concluded that “[a]‌fter wading through three hundred and thirty pages of this gobbledygook, one experiences a certain fatigue” (ibid.). 6 This festschrift for Roscoe Pound included three pieces by students of Petrażycki and one by a contemporary. Pound’s “sociological jurisprudence” is ordinarily considered among the sources of the realist thinking of the 1920s and the 1930s. 7 “The Jurisprudence of Escape” is a term Simpson apparently adapted from a sentence by Jerome Hall (1947) attacking the Pure Theory of Law. Hall wrote that “The Pure Theory exhibits the perennial need for, indeed, the actual impossibility of escaping, evaluation in any jurisprudence” (quoted in Simpson 1948: 398). According to Simpson, Pure Theory “by its very disregard of the concrete … enables its votaries to escape from the painful reality of actual concrete law and its relation to concrete life in a painful world” (399). Kelsen was the prime example. 8 Formalism is the approach to which American realism was a response. Formalism sees determinate judicial decisions, based on relatively clear rules and principles. It is sometimes referred to as mechanical jurisprudence. See generally Brian Leiter (2010). Pre-​realist ideas can be found in the aphorisms of Oliver Wendell Holmes, Jr. and the writing of John Chipman Gray, among others. American Realist writers were not of one mind on various subjects. Realism had sources, and it had representative writers, or at least writers taken as “representative” by other people. Clear and

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acknowledged intellectual genealogies—​starting from a specific point and going on to include generations of adherents—​are not typical of academic law in the United States. 9 Petrażycki was the son of a nobleman (see Chapter 1 in this volume. Parenthesis by eds.). He signed his German works with a “v.” (von). Though he suggested that issues of nobility would be eradicated (Petrażycki 2011[1955]: 66), it had not happened in his time. See, for example, the obituary in the New York Times, February 21, 1964, of [Baron] Alexander Meyendorff whose writing on Petrażycki included material based on his personal knowledge of his contemporary. Special to the New York Times, “Alexander Meyendorff, 94, Dies; Russian Baron Served in Duma,” New York Times, February 21, 1964. Podgórecki—​born in 1925—​comments on Petrażycki’s personality and refers to Petrażycki’s difficulties in managing social roles. Presumably the issue of nobility was one of these (Podgórecki paraphrased in Langrod and Vaughan 1970). See also Romana Sadurska (1987). 10 Jurisprudence is here linked to legal dogmatics. One definition of legal dogmatics is given by Aleksander Peczenik: Legal dogmatics or the doctrinal study of law consists in interpretation and systematization of valid legal norms. It comprises most commentaries and discussions about law, except general jurisprudence, legal sociology, legal philosophy and history of law. Besides, it does not comprise the law-​making activity. Discussions carried on by the State organs, e.g., courts, applying and/​or making law, are very akin to dogmatics but remain outside its limits. Although more influential on the European Continent than in the Common Law countries, legal dogmatics exists in every modern State.

1969: 32 Petrażycki writes that “[j]‌urisprudence is … an intellectual activity and technique directed at the development of positive—​and especially of official—​law in the direction of unification” (2011[1955]: 141). With an emphasis on the psychological theory of law, one would say that Petrażycki’s concern was with the mind of the officials as they worked with official law. Jurisprudence, in the common law world, often means something about theory or philosophy. Usage here varies. Some writers make no distinction between jurisprudence, legal theory, and legal philosophy (e.g., Bix 2015: vii, fn. 1). (A literal translation of the Petrażyckian statement quoted by the author in the text would read as follows: “legal dogmatics [jurisprudencija] is similar to mathematics due to the strict deductive coherence [posledovatelnost’] of its reasonings and proofs [dokazatel’nost’] of its theses.” On Petrażycki’s conception of legal dogmatics, see Fittipaldi [2016 : 503] and Glossary. Parenthesis by eds.) 11 The continental civil law tradition is not uniform. For a description of the complex civil law world that Petrażycki would have known, see Max Rheinstein (1941) on the civil law and the common law. While it might be said that the civil law and common law traditions have been drawing closer in recent decades, there are indications that the old differences still were evident through the 20th century and are quite likely visible still, despite various forms of integration, harmonization, and globalization. 12 He meant the common law and official law. 13 See generally Kantorowicz (1934). He noted that Holmes did not distinguish between “the law” and “the science of the law” (1247, fn. 20). Kantorowicz understood that this approach (seen as a failure to distinguish between certain ideas and methods) antedated the realists of the 1920s and 1930s.

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14 A common convention takes 1870, the year that Christopher Columbus Langdell became Dean of the Harvard Law School, as the start of modern legal education in the United States. 15 Langdell is ordinarily credited both with the case method of teaching and with the idea of law as a science. He did not invent the case method, and, as to law as a science, he drew on a long tradition. 16 Sometimes the image was science as mathematics, sometimes it was of the experimental sciences. 17 It is said that a famous Harvard law professor, quite possibly the model for the formidable Professor Kingsfield of the novel The Paper Chase, began his property course by saying that law was part art and part science, but more art than science (“Bull” Warren quoted by Lipson 1976: 1333). 18 See Gray (1892) on uses and limits of strict definitions. On Gray’s Jurisprudence more generally, see Gray (1909). 19 There is a large literature on American legal realism, the many ideas associated with it, and the related question of whether it can be considered a single movement at all. 20 Karl Llewellyn, Jerome Frank, etc. The summary of the realist position, as it is sometimes put by its critics, is that there is no law and there are no facts (meaning that the judicial process calls both law and facts into question). The empiricists among the American legal realists were deeply interested in facts on the ground. The general question of the impact of legislation remains a subject of research. 21 Petrażycki apparently did not think about Roman law in that way. See Babb (1937):“The chief thoughts at the foundation of the science of legal policy [in Petrażycki] may be found in Roman law. Roman jurists held that the moral improvement of the people was the task of the law” (813). 22 Here Walicki refers to two German works by Petrażycki, published, respectively in 1892 and 1892–​ 1893, Die Fruchtverteilung beim Wechsel des Nutzungsberechtigten. Drei civilrechtliche Abhandlungen (Berlin: Müller) and Die Lehre von Einkommen vom Standpunkte des gemeinen Civilrechts (Berlin: Müller). (Note by eds.) 23 Here, as at other points, there is a clear normative position, with little or no discussion to support it. See the “Art” section. 24 This purpose often has something to do with deciding a problem in a context involving the controversies between actual people as debated by their advocates (cf. Gray 1888). It is also true that Academics who work on philosophy of law or jurisprudence or legal theory may be interested in distinction and classification as part of the discussion of theory. Various schools of thought have used the word “realist.” Once, the contrast was between philosophical realists and nominalists. Then, it became between legal realists and legal formalists. Now, the contrasts are more about different national styles of “realist,” American and Scandinavian or continental. The “Realists” in these schools are trying to do very different things and are focused on very different issues. In the same way, the writings of historians and legal academics often consider the same material without necessarily addressing or even recognizing the same questions. 25 The difficulties involved in discussing Petrażycki may sometimes be addressed by presenting ideas at a general level, omitting consideration of the particular definitions and distinctions (cf. Weisbrod 2009). 26 The sources of Petrażycki’s writing must include his study in late 19th-​century Germany. On the various elements, historical and jurisprudential of German legal system, see Reimann (1990). Petrażycki has a result in mind, but it is larger than any specific case.

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27 Petrażycki insists on the distinction between dogmatics and theory at various points in Law and Morality (2011[1955]: 140 ff., 151, 246–​7.; on theory, and the theoretical point of view, see 76, 256–​7). 28 Max Laserson, who studied with Petrażycki, tells us that in Russia law was not connected with art, focusing instead on the structures of legal science rather than the arts of practice or adjudication. A Latvian who worked in several countries, Laserson was aware of the differences between the American common law tradition and the Russian civil law approach, noting that some American “neo-​realists” do talk about art and law, and refer to the work of lawyers and judges as well as theoreticians. Laserson (1947: 79) might have illustrated with references to Llewellyn (1935) and Radin (1937). 29 Meyendorff was thinking particularly of the issue of absorption in work rather than personal relationships. For other speculations on Petrażycki as an individual, see Langrod and Vaughan (1970: fn. 68–​69, summarizing Podgórecki’s comments) and Sadurska (1987). On Petrażycki’s suicide, see Wagner (1957) and Merezhko (2012). 30 Timasheff referred to Petrażycki’s attack on some older theories and then said: “From the ruins of these destroyed theories, a scientific edifice, beautiful in consistency and dramatic expression, emerged” (Timasheff 1955: xxiv; 2011[1955]: xxxvi). Cf.“Elegant” in relation to proofs, arguments, etc. 31 There are some emotions in these little narratives (a diva might get “into a pet”) but the purpose is to analyze the stories using the categories of Roman law, rather than using them to reconsider the problem through a new lens. 32 Petrażycki did not marry the mother of his children (Meyendorff 1947: 531). 33 On “criminal” jural emotions, see Chapter 7 in this volume. (Note by eds.) 34 Petrażycki discusses the idea of an awareness of “rights” in various contexts. In general, he sees the significance of “rights consciousness” (as American academic lawyers have used the term). 35 Tolstoy was arguing against the idea that art meant something beautiful, which would simply mean that which pleases us. Tolstoy, in his later life, came to the conclusion that his own work was Art under the definition reported in text, which rejects the standards of beauty as the definition of art, but also bad art, because it was not centrally concerned with a religious purpose. On this subject, see also Pevear (1995: xviii and 116–​17, n. 109). Babb reports that Tolstoy “is said to have seen in Petrazhitskii’s theory an attempt at ethical justification and proof of law” (1938: 535). 36 The ultimate goal of legal development is the inculcation of “autonomous” social conduct (established by inner consciousness and will) so that society shall attain a harmonious condition of cooperation in social serving. When that goal is reached law will become superfluous and cease to exist.

Babb 1938: 810 37 Contrary to church law or customary law, examples like this draw on larger systems of social control (e.g., the code of the gentleman) but are not attempts to regulate social life in its totality. 38 This is not the place for a discussion of Tolstoy’s view. In general, it echoes the position of many small sectarian groups over the centuries, pacifist, separatist, and uncompromising, and in various degrees hostile to state courts and institutions. But one can see that Petrażycki’s account of rights and duties is more subtle and sees many more possibilities for interactions between various kinds of law and levels of law.

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39 As to the liberation of the serfs, Petrażycki sees the reform as resulting from the operation of the intuitive law of an elite, which changes the positive law, in advance of the ideas [intuitive law] of the population as a whole. Moreover, the older generation of serfs would tend to continue under the old legal consciousness, where the legal consciousness of young people would move in the direction of the reformed legal relations. See also references to women’s issues, possibly influenced by his knowledge of the experience of his sister Jadwiga. See generally, Fuszara 2009. 40 Petrażycki (2011[1955]: 67–​8). In American law, ideas of privacy and non-​interference in the family served to protect various forms of physical and psychological abuse and intimidation, which might have been recognized as conflict, or we may believe that the area of actual conflict is larger than Petrażycki thought. 41 Still, Petrażycki might well have known of the issue of polygamy among Russian Muslims and the 1917 discussions among Muslim women. See Kamp (2015). 42 Solovyov (2000) wrote on law and the state in a detailed positive way (a contrast to the generalized refusals of Tolstoy). 43 Cfr. Chapter 2 (Note by eds.) 44 Solovyov took the first steps toward a revival of natural law. Petrażycki was one of those who then “openly proclaimed it” (Walicki 1986: 5). Walicki suggests that Petrażycki was “one of the great intellectuals of the KaDet party … a theorist actively committed to the cause of the liberal Rechtsstaat in Russia” (1986: 234). 45 On Petrażycki’s concept of love, see Glossary. (Note by eds.) 46 Born in Odesa, Pekelis taught in Italy until removed from his post by the fascist government. He went to the United States and studied law at Columbia law school. 47 See discussion of this point in Fittipaldi (2016) who writes: “The subjectivism of the Petrażyckian approach requires that we take into account the incompatible ways different Subjects may represent to themselves … their own independent social groups, their own supreme authorities and officials” (499, fn. 140, emphasis in the original). The theory, therefore, permits us to take a pluralist orientation into account. However, if Petrażycki himself had been completely free of the centralist assumptions of his legal culture he would perhaps have seen the “duality” (2011[1955]: 74) involved in the customary law discussion as not limited to primitive cultures and “the tribal mind.” (On the concept of an independent social group, see Chapter 10, in this volume. Parenthesis by eds.) 48 The work is an argument for a system of international law that goes beyond sovereign states to include a variety of groups and agencies, public and private. (On the problem of the “other” subjects of international law, see Chapter 10, in this volume. Parenthesis by eds.) 49 The regular connection between Petrażycki and Pavlov has some unfortunate associations. 50 See also Jeremy Waldron (2014) on the issues raised by even a mild form of paternalism through government manipulation of the structures framing individual choices (“nudge”). 51 This is similar to the language that Timasheff used as to Solovyov. The formulations seem to mean that a possibly significant connection is seen, but is not part of the present discussion. 52 These authorities might have quite different regulatory structures, some more elaborate than others.

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53 The description of the “integrated” material is what Griffiths (1986) would call “weak” or “juridical pluralism.” 54 It is in discussions of the tensions between pluralism and liberalism that the idea of exit (from communities, from families, religions, from states) becomes critical. See Weisbrod (2020). 55 The discussions of Petrażycki’s suicide raise various possibilities about his motivation. See note 29, above. 56 Roscoe Pound associated Petrażycki with Phenomenology (1938: 809). (On Petrażycki and phenomenology, see Chapters 5 and 6, in this volume. Parenthesis by eds.) 57 Petrażycki included statistical methods among the possible means of study, though I do not know if he himself did quantitative work. 58 Nonet was born in Belgium and had his first training in law there.

References Abrams, Kathryn, 1991. Hearing the Call of Stories. California Law Review, 79, 4: 971–​1052. Babb, Hugh, 1937. Petrazhitskii: Science of Legal Policy and Theory of Law. Boston University Law Review, 17: 793–​829. Babb, Hugh,W., 1938. Petrazhitskii:Theory of Law. Boston University Law Review, 18: 511–​78. Babb, Hugh W., 1955. Translator’s Introduction. In Leon Petrażycki (Nicholas Timasheff ed.), Law and Morality. Cambridge, MA: Harvard University Press. Babb, Hugh W, 2011[1955].Translator’s Introduction. In Leon Petrażycki (Nicholas S.Timasheff ed.), Law and Morality. New Brunswick:Transaction Publishers (reprint of Babb 1955). Birks, Peter, 2004. Roman Law in Twentieth-​ Century England. In Jack Beatson and Reinhard Zimmerman (eds.), Jurists Uprooted: German-​ Speaking Emigré Lawyers in Twentieth Century Britain. Oxford: Oxford University Press. Bix, Brian, 2015. Jurisprudence: Theory and Context. 7th edition. Durham, NC: Carolina Academic Press. Cotterrell, Roger, 2015. Leon Petrażycki and Contemporary Socio-​ Legal Studies. International Journal of Law in Context, 11, 1: 1–​16. Campbell, Archibald H., 1956. Review of Leon Petrazycki’s “Law and Morality.” Modern Law Review, 19: 436–​8. Damaska, Mirjan, 1968. Continental Lawyer in an American Law School: Trials and Tribulations of Adjustment. University of Pennsylvania Law Review, 116, 8: 1363–​78. Deflem, Mathieu, 2008. Sociology of Law:Visions of a ScholarlyTradition. Cambridge: Cambridge University Press. Fittipaldi, Edoardo, 2016. Leon Petrażycki’s Theory of Law. In Enrico Pattaro and Corrado Roversi (eds.), Legal Philosophy in the Twentieth Century:The Civil Law World,Tome 2: Main Orientations and Topics. Dordrecht: Springer. Fittipaldi, Edoardo, and Elena Timoshina, 2017. Theory of Custom, Dogmatics of Custom, Policy of Custom: On the Threefold Approach of Polish-​Russian Legal Realism. Ratio Juris, 30, 1: 105–​22. Fuszara, Malgorzata, 2009. Leon Petrażycki’s Theory and Women’s Rights. Societas/​ Communitas, l, 7: 37–​45. Gilmore, Grant, 1977. Ages of American Law. New Haven, CT:Yale University Press. Gorecki, Jan (ed.), 1975. Sociology and Jurisprudence of Leon Petrażycki. Urbana: University of Illinois Press. Gray, John C., 1888. Cases and Treatises. American Law Review, 22: 756–​64.

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91

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Gray, John C., 1892. Some Definitions and Questions in Jurisprudence. Harvard Law Review, 6, 1: 21–​35. Gray, John C., 1909. The Nature and Sources of the Law. New York, NY: Columbia University Press. Griffiths, John, 1986. What Is Legal Pluralism? Journal of Legal Pluralism and Unofficial Law, 24: 1–​56. Hall, Jerome, 1947. Integrative Jurisprudence. In Paul L. Sayre (ed.), Interpretations of Modern Legal Philosophies: Essays in Honor of Roscoe Pound. Oxford: Oxford University Press. Hoeflich, Michael H., 1986. Law and Geometry: Legal Science from Leibniz to Langdell. American Journal of Legal History, 30, 2: 95–​121. Hoeflich, Michael H., 1997. Roman & Civil Law and the Development of Anglo-​American Jurisprudence in the Nineteenth Century. Athens, GA: University of Georgia Press. Holmes, Oliver W., 1897. The Path of the Law. Harvard Law Review, 10: 457–​78. Jessup, Philip, 1956. Transnational Law. New Haven, CT:Yale University Press. Kamp, Marianne, 2015. Debating Sharia: The 1917 Muslim Women’s Congress in Russia. Journal of Women’s History, 27, 4: 13–​37. Kantorowicz, Hermann, 1934. Some Rationalism about Realism. Yale Law Journal, 43, 8: 1240–​53. Kojder, Andrzei, 2006. Leon Petrażycki’s Socio-​ Legal Ideas and Their Contemporary Continuation. Journal of Classical Sociology, 6(3): 333–​58. Langrod, Georges S., and Michalina Vaughan, 1970. The Polish Psychological Theory of Law. In Wenceslas J. Wagner (ed.), Polish Law Throughout the Ages. Stanford, CA: Hoover Institution Press. Laserson, Max M., 1947. The Work of Leon Petrażycki: Inquiry into the Psychological Aspects of the Nature of Law. Columbia Law Review, 51, 1: 59–​82. Laserson, Max M., 1950. The American Impact on Russia: Diplomatic and Ideological, 1784–​ 1917. New York, NY: Macmillan Co. Legaré, Hugh S. (Mary S. Legaré ed.), 1845[1826]. Kent’s Commentaries. In Hugh S. Legaré (Mary S. Legaré ed.), Writings of Hugh Swinton Legaré, vol. II. Philadelphia, PA: Thomas Cowperthwait & Co. Leiter, Brian, 2010. Legal Formalism and Legal Realism: What Is the Issue? Legal Theory, 16, 2: 111–​33. Lipson, Leon S., 1976. Review of Lawrence M. Friedman’s “The Legal System: A Social Science Perspective.” Wisconsin Law Review, 4: 1333–​7. Llewellyn, Karl N., 1935. On What Is Wrong with So-​Called Legal Education. Columbia Law Review, 35, 5: 651–​78. Llewellyn, Karl N., 1942. On the Good, the True, the Beautiful, in Law. University of Chicago Law Review, 9, 2: 224–​65. Merezhko, Aleksandr A., 2012. The Mystery of a Legal Philosopher’s Death. Journal of Comparative Law, 7, 1: 108–​14. Meyendorff, Alexander, 1947. The Tragedy of Modern Jurisprudence. In Paul L. Sayre (ed.), Interpretations of Modern Legal Philosophies: Essays in Honor of Roscoe Pound. Oxford: Oxford University Press. Motyka, Krzysztof, 2007. Petrażycki: Challenge to Legal Orthodoxy. Lublin: Towarzystwo Naukowe Katolickiego Uniwersytetu Lubelskiego Jana Pawła II. Nonet, Philippe, 1978. Review of Jan Gorecki’s (ed.) “Sociology and Jurisprudence of Leon Petrażycki.” American Journal of Sociology, 84, 2: 476–​9. Peczenik, Aleksander, 1969. Empirical Foundations of Legal Dogmatics. Logique et Analyse, Nouvelle Série, 12, 45: 32–​64.

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Pekelis, Alexander H., 1943. Administrative Discretion and the Rule of Law. Social Research, 10, 1: 22–​37. Pekelis, Alexander H., 1950[1943]. Legal Techniques and Political Ideologies: A Comparative Study. In Alexander H. Pekelis (Milton R. Konvitz ed.), Law and Social Action: Selected Essays of Alexander H. Pekelis. New York, NY: Da Capo Press. Petrażycki, Leon (Nicholas Timasheff ed.), 2011[1955]. Law and Morality. Piscataway, NJ: Transaction Publishers. Reprint with a new introduction by A. Javier Treviño of Petrażycki, Leon (Nicholas Timasheff ed.), Law and Morality. Cambridge, MA: Harvard University Press, 1955 (on this reference, see note 1. Parenthesis by eds.). Pevear, Richard, 1995. Translator’s Introduction to Leo Tolstoy’s What Is Art. London: Penguin, 1995[1897]. Posner, Richard A., 1997. Legal Narratology (Reviewing Law’s Stories: Narrative and Rhetoric in the Law by Peter Brooks, Paul Gewirtz). University of Chicago Law Review: 64, 2 (Spring): 737–​48. Pound, Roscoe, 1938. Fifty Years of Jurisprudence. Harvard Law Review, 51, 5: 777–​812. Rabel, Ernst, 1950. Private Laws of Western Civilization Part III: The German and Swiss Civil Codes. Louisiana Law Review, 10: 265–​75. Radin, Max, 1937. The Education of a Lawyer. California Law Review, 25, 6: 676–​91. Reimann, Mathias, 1990. Nineteenth Century German Legal Science. Boston College Law Review, 31, 4: 837–​97. Rheinstein, Max, 1941. Common Law and Civil Law: A Comparison. Pennsylvania Bar Association Quarterly, 12: 7–​19. Rheinstein, Max, 1967[1954]. Introduction to Max Weber. In Max Rheinstein (ed.), On Law in Economy and Society. New York, NY: A Clarion Book. Sadurska, Romana, 1987. Jurisprudence of Leon Petrażycki. American Journal of Jurisprudence, 32: 63–​98. Sayre, Paul L., 1947. Interpretations of Modern Legal Philosophies: Essays in Honor of Roscoe Pound. Oxford: Oxford University Press. Simpson, Sidney P., 1948. Roscoe Pound and Interpretations of Modern Legal Philosophies. New York University Law Quarterly Review, 23, 3: 393–​411. Solovyov,Vladimir S. (Vladimir Wozniuk ed.), 2000. Politics, Law and Morality: Essays by V. S. Soloviev. New Haven, CT:Yale University Press. Tennyson, Alfred (William T. Webb ed.), 1891[1864]. Aylmer’s Field. London and New York, NY: MacMillan and Co. Teufelsdröckh, Diogenes J.S. [pseudonym used by Karl Llewellyn], 1938. Jurisprudence, the Crown of Civilization: Being Also the Principles of Writing Jurisprudence Made Clear to Neophytes. University of Chicago Law Review, 5, 2: 171–​83. Timasheff, Nicholas S., 1955. Introduction. In Leon Petrażycki (Nicholas S. Timasheff ed.), Law and Morality. Cambridge, MA: Harvard University Press. Timasheff, Nicholas S., 2011[1955]. Introduction. In Leon Petrażycki (Nicholas S. Timasheff ed.), Law and Morality. New Brunswick: Transaction Publishers (reprint of Timasheff 1955). Tolstoy, Leo [Tolstoj, Lev N.], 1995[1897]. Čto takoe iskusstvo? English translation What is Art? London: Penguin. Treviño, A. Javier, 2017. Classic Writings in Law and Society. 2nd edition. Abingdon and New York, NY: Routledge. von Jhering, Rudolf, 1904[1889]. Die Jurisprudenz des Täglichen Lebens. Eine Sammlung an Vorfälle des gewöhnlichen lebens anknüpfender Rechsfragen. English translation Rudolf von

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Jhering, Law in Daily Life: A Collection of Legal Questions Connected with the Ordinary Events of Everyday Life. Oxford: Clarendon Press. Wagner, Wencelas J., 1957. Review of Leon Petrażycki’s “Law and Morality”. Cornell Law Quarterly, 43: 152–​7. Waldron, Jeremy, 2014. It’s All for Your Own Good (Review of Cass R. Sunstein and Richard Thaler’ Nudge). New York Review of Books, October 9. www.nybo​oks.com/​artic​ les/​2014/​10/​09/​cass-​sunst​ein-​its-​all-​your-​own-​good/​ (accessed June 15, 2018). Walicki,Andrzej, 1986. Legal Philosophies of Russian Liberalism. NewYork, NY: Clarendon Press. Weisbrod, Carol, 2009. Petrażycki According to Pound: A Note on an American Discussion of Legal Pluralism. Societas/​Communitas, 1, 7: 69–​79. Weisbrod, Carol, 2020. Other Parts of the Forest. In Paul S. Berman, Oxford Handbook on Global Legal Pluralism. Oxford: Oxford University Press. Wozniuk, Vladimir, 2000. Introduction. In Vladimir S. Solovyov (Vladimir Wozniuk ed.), Politics, Law and Morality: Essays by V. S. Soloviev. New Haven, CT:Yale University Press. Zausner, Otto, 1948.Vishinsky Sprinkles His Law Book With Shots at U. S. System. Boston Globe, December 19: 21.

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PART II

Main Concepts and Issues

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5 LEON PETRAŻYCKI’S UNFINISHED PROJECT Sociology as a Rigorous Science Elena V. Timoshina*

Petrażycki’s Sociology and Husserl’s Philosophy There are at least three reasons for associating Leon Petrażycki’s sociology with Edmund Husserl’s philosophy. First, if for Husserl, philosophy was not yet a “rigorous science,” neither did Petrażycki regard the sociology of his time as a rigorous science. Petrażycki was critical of Marx; the positivist sociologists such as Comte and Durkheim; the organicists like von Lilienfeld,Worms, and Schäffle; as well as the social Darwinists. He believed that Marx’s ultimate interpretation of social phenomena in economic terms was one-​sided; that the organism metaphor for explaining social phenomena was naive; and that social Darwinism was not able to explain the emergence of phenomena due to social communication (see below). In this chapter, I focus on Petrażycki’s arguments against deterministic approaches in sociology. These arguments show that he did not understand sociology’s “rigor” in establishing causal regularities. Petrażycki focused his critique on classical sociology’s “fundamentalism,” or the absolutizing of one principle for explaining social reality. Further, these absolutizations typically do not provide the rational grounds for the selection of any particular explanatory factor: its ontological primacy is postulated as self-​ evident and illustrated by examples. According to Petrażycki, in sociology, we find a “museum of scientific pathology [muzej naučnoj patologii]” (2010[1908]: 440), that is, “we are confronted with a steadily increasing number of competing theories, each of which promotes some … aspect [èlement] of human life as the ‘basis’ of all social life, history, and social processes” (439). He makes the examples of the relations of production in Marxism and of the struggle for existence and natural selection in social Darwinism, as well DOI: 10.4324/9781351036740-8

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as of the sociological conceptions where the role of all-​explaining factor is played, respectively, by racial features (racial anthropology), the physical and geographical environment (the geographic school), the imitation of the most prominent and creative individuals (Gabriel Tarde), the subjugation of some social groups by others (Ludwig Gumplowicz), and so on. According to Petrażycki, all these sociological conceptions err in absolutizing one all-​determining principle and this mistake can be avoided by acknowledging that a certain factor, a certain theory one “fell in love with,” has its own specific domain of action and its own proportion of relevance in social life and its history (440). That is, one should recognize the theory’s limitations or, to put it otherwise, renounce its fundamentalization. During his Warsaw period (1918–​32), Petrażycki saw a connection between the fundamentalism, reductionism, and determinism of classical sociologies. According to him, the postulation of one fundamental explanatory factor leads to “a ‘radical’ simplification of causal connections, to the disregard of a huge number of factors” (1939a[1920–​23]: 79), as well as to the deterministic idea—​ harking back to Kant—​that certain phenomena (causes) are invariably followed by other phenomena (96). Petrażycki believed that most sociological theories of his time were built as if [their] authors were guided … by the naive idea that social phenomena can be explained by adopting some single factor which alone … causes everything, governs everything, explains everything—a factor that … in all theories plays the role of Jack of all trades [Mädchen für alles]. 75 Among such social theories, Petrażycki includes those of Marx,Tarde, Gumplowicz, and Sombart, where one single factor—​much as “an absolute king”—​rules the domain of social causality (ibid.). Other sociologists, according to him, are not so radical and rather than favor a single factor adopt several. In these cases, we find, “not an absolute monarchy, but an oligarchy” of causal factors (ibid.). Moreover, these sociological conceptions exhibit “an extremely naive view on the essence [istota] of causal connections and on the nature of real phenomena” (76). In contrast to classical determinism and reductionism, Petrażycki underscores the infinite complexity of causal connections and so formulates the principle of infinite complexity of the net of causal connections (1939a[1920–​23]: 87–​8). A consequence is what Petrażycki calls the principle of the absolute individuality, and then irregularity and patternlessness, of real phenomena (93–​4). According to Petrażycki, these two principles are universal, and “apply to everything that is real” (93). Indeed, they pertain to “the general theory of all that exists” and propound an unimaginable number of “factors, influences, actions, co-​actions, counteractions, effects, dissimilarities” (ibid.). Petrażycki also qualifies these two principles noting that,

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they gain … increasing relevance in science … as we proceed from (1) … inanimate nature to the more complicated phenomena [of] (2) animated nature, (3) … psychically animated organisms, and (4) … creatures with a psyche complicated by the psychical influences of other individuals. ibid. The socio-​psychical phenomena of “civilized peoples” pertain to the fourth stage. Based on this consideration, Petrażycki formulates a third connected principle, namely, the principle of the increasing complexity of the net of causal phenomena, and writes: where we have the joint action [współdziałanie] of many organisms with many psyches—​as in the case of … peoples, states, and social phenomena in general—​… the causal complexity is even greater, and … further countless factors and complications accrue. ibid.: 73 Thus, Petrażycki rejects the causal determinism of classical sociology and has as his point of departure the unpredictability of social phenomena. This is perhaps the reason that Petrażycki preferred to speak of tendencies of social evolution rather than of laws. To sum up, the first reason for comparing Petrażycki with Husserl is that both denied that, respectively, sociology and philosophy were rigorous sciences. Let us now turn to the second reason why Petrażycki’s sociology can be compared to Husserl’s approach to philosophy. Just as Husserl criticized naturalism in philosophy, Petrażycki asserted that the methods of the natural sciences are not suitable in understanding social phenomena, which, according to him, have a “mental,” or ethical-​motivational nature. Arguably, he also eschewed the sociological theories of his time because of their dehumanization and naturalization of the social world, which, according to Petrażycki, is the complex product of the emotional-​cognitive motivational processes found in the subjects’ consciousness. The third and final reason is that, like Husserl, who maintained that “our age is according to its vocation a great age—​only it suffers from the skepticism that has disintegrated the old, unclarified ideals” (1965[1911]: 145), Petrażycki predicted a radical transformation in classical sociology’s view of the social world. As early as 1907, Petrażycki anticipated “a rapidly approaching scientific revolution” (t. 1: 159) that would shake to its core most of the scientific edifices of this time (ibid.). He believed that the social studies of his time rested on moral and legal nihilism (nigilizm) and on the ignorance of the peculiar spiritual nature (duhovnaja priroda) of social phenomena, along with their reduction to individual or mass practical interests (ibid.). Such a scientific revolution, according to Petrażycki, would purify the stale and rotten air of the vulgar materialism that prevailed in social sciences and humanities and unleash a radical restructuring (ibid.) of social knowledge.

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Petrażycki would likely have agreed with the following reflections from Husserl: From the start, naturalism, sets out with a firm determination to realize the ideal of a scientific reform of philosophy. It even believes at all times, both in its earlier and in its modern forms, that it has already realized this idea. But all this takes place … in a form that from the ground up is replete with erroneous theory; and from a practical point of view this means a growing danger for our culture. It is important today to engage in a radical criticism of naturalistic philosophy. In particular, there is need of a positive criticism of principles and method. Husserl 1965[1911]: 145 Petrażycki poses a fundamental methodological question: How can sociology be a rigorous science if it can not be built on the model of the natural sciences?

Historical Remarks on an Unaccomplished Project Habent sua fata libelli (“Books have their own destinies”), Petrażycki was fond of saying. And so, too, his book in sociology had its own sad fate. Petrażycki first announced his project in 1904 (75), in his book On Motives of Human Behavior: Notably on Ethical Motives and Their Subspecies, where he asks “how [certain] human convictions—​certain couplings of certain emotions with certain kind[s]‌of representations—​in general originate and evolve, and how they originated and evolved in the history of our culture,” and then expresses the hope of returning to these themes at another time. Subsequently, in his Theory of Law and State (2000[1909–​10]: 598—​1st ed. 1907), Petrażycki promises to offer a sociology of emotions, which was premised on “a specific theory on the origin and development of law” (ibid., emphasis added), in a forthcoming book entitled Outline of Sociology and the History of Political Doctrines. Here he also planned to present a “theory on law’s action and its historical laws of development.”1 Jerzy Lande (1975[1958]: 23–​4) provides information about the fate of this project. He reports that Petrażycki had three manuscripts on sociology, written at different times, the latest having been drafted in Warsaw. According to Lande, Petrażycki was prevented from publishing the book due to poor health and depression. Petrażycki’s student Rafal Wundheiler prepared a typescript, based on Petrażycki’s lectures, read it to Petrażycki, and, in this manner, produced an abridged version. Even though the text could have been released straight away, Petrażycki delayed its publication until his death. Lande also reports that, despite Petrażycki’s widow retaining the handwritten copies and Wundheiler’s typescript, they were all destroyed during the 1944 Warsaw uprising, and so Petrażycki’s sociology, in its original form, was lost forever.

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The loss of these sociological works makes the “reconstruction of Petrażycki’s ideas on sociology in general and on the sociology of law in particular a difficult task” (Podgórecki 1974[1971]: 275). What is more, comparing his sociological ideas with those of Ehrlich and Weber might seem impossible. Petrażycki’s uncertain sociology, however, did not prevent comparisons of his theoretical legacy with the ideas of sociologists and sociologists of law, like Émile Durkheim, Roscoe Pound, Talcott Parsons, and George Herbert Mead (cf. Gorecki 1975).

Petrażycki and the Analytical-​Phenomenological Tradition The main reason that Petrażycki did not think it possible to formulate a sociology along the lines of the natural sciences is that his methodology may have been influenced by Husserl. This supposition allows us to highlight a few similarities between Petrażycki’s epistemological ideas and the analytical-​phenomenological tradition as a whole—​as represented by Gottlob Frege, Franz Brentano, and Alexius Meinong—​but particularly Husserl’s analytical-​phenomenology, as presented in his Logical Investigations. Seven arguments in support of this tradition’s influence on Petrażycki may be identified. First, these thinkers share the idea that the subject-​matter (henceforth “object”2) of knowledge is not the external world but rather the internal experiences of the subject, understood either psychologically (as in the case of Brentano and Petrażycki) or phenomenologically (as in the case of Husserl). Second, both Husserl and Petrażycki regarded the existence of general objects (classes)—​ and of the general concepts corresponding to them—​ as necessary conditions for theoretical knowledge.Third, Petrażycki’s conceptions of class-​concept as the “idea of everything that is thinkable as possessing certain features” (“every idea having structure: all that has the feature a”) and of class as a thought-​object3 corresponding to that idea (“all objects having the property a”) (2010[1908]: 409 and 428, cf. 2011[1907]: 18, see also Glossary, entry “class”) can be compared to Husserl’s conception of intentional objects and general concepts. Fourth, Frege, Husserl, and Petrażycki proceeded from the idea that the extension of a general concept does not depend on the empirical existence of a certain finite set of objects thinkable by means of a certain concept. In other words, the extension of a general concept is infinite and the corresponding class (Husserl’s allgemeiner Gegenstand) is a thought-​object distinct from the empirical population of the members in the corresponding class. Such a definition of the concept of class is usually called intensional.4 Fifth, the ontologically tolerant5 conception of intentional objects proposed by Brentano, Meinong, and Husserl, as objects represented within consciousness, regardless of the existence of their empirical counterparts, is paralleled by one of the main tenets of Petrażycki’s psychological theory of law, namely, that in the case of the concepts dealt with by legal theorists—​be they states, juristic persons,

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rights, legal obligations, legal sources (i.e., normative facts)—​ one should not search for empirical counterparts “somewhere in space.” Those concepts and the corresponding thought-​objects exist exclusively as cognitive elements within the structure of legal phenomena—​that is, they exist solely within the consciousness of the people experiencing them. The epistemological position excluding the possibility and the necessity of the correspondence of intentional (or thought) objects with some non-​ linguistic and non-​ mental reality—​ a reality transcending the individual’s consciousness—​calls into question the classical idea of truth as correspondence between thought and a certain empirical state of affairs (adaequatio rei et intellectus). Sixth, when comparing Husserl and Petrażycki, it should be noted that they both proceeded from the idea of the logical unity of scientific knowledge,an idea that,as Husserl wrote, ruled out arbitrary divisions in the realm of truth—​a realm that, according to him, “is objectively articulated into fields” (Husserl 2001a[1913]: 12).This compelled Petrażycki to reformulate the then-​existing system of sciences in accordance with the principle of adequacy (see the “Sociology’s Logico-​Methodological Foundations and Petrażycki’s Unity of Scientific Knowledge” section). Seventh and finally, both thinkers believed in the incommensurability between theoretical and empirical knowledge, and thus in the idea of the logical impossibility of deducing a theory from a collection of individual facts. As such, both thinkers criticized the empiricist theory of abstraction.6 These comparisons between Petrażycki and Husserl do not imply a phenomenological nature to Petrażycki’s methodology; if only because Husserl, in his Logical Investigations, had not yet developed the phenomenological conceptual apparatus or its method. On the other hand, these comparisons do call into question the traditional assessment of Petrażycki’s methodology as positivistic.

Sociology’s Logico-​Methodological Foundations and Petrażycki’s Unity of Scientific Knowledge Petrażycki’s sociological project can be reliably reconstructed only at the level of his logico-​methodological ideas, the most important of which was the notion of the unity of scientific knowledge. His reflections on sociology, as well as those on the specialization of the sciences based on different objects, are in line with the established European idea of a Wissenschaftslehre (or theory of knowledge), which is associated with the work of Edmund Husserl and Bernard Bolzano.They proposed that the logical unity and the “objective” articulation of the sciences should be founded on the “objective” articulation of the “realm of truth” in free-​ standing domains according to their respective objects (that is, as special sciences). As pointed out by Husserl: The field of a science is an objectively closed unity: we cannot arbitrarily delimit fields where and as we like. The realm of truth is objectively articulated into

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fields: researches must orient themselves to these objective unities and must assemble themselves into sciences. Husserl 2001a[1913]: 12, emphasis added As with previous attempts to develop a Wissenschaftslehre, Petrażycki’s sociology was premised on the idea of the unity of science and of the existence of a logically necessary order of sciences: The substance of the matter is that science is unitary … If the “sciences” … are thought of as distinct and autonomous, this is an illusion to be explained purely in the terms of external and … casual circumstances. Petrażycki 1907, volume 1: 465 Petrażycki regarded the distinct scientific disciplines as “chapters and sections of the one unitary Science, of the grand unitary book of human wisdom and knowledge” (ibid.). The closest source from which Petrażycki could have derived the idea of a “purely” logical objective-​ideal unity of scientific knowledge was Husserl’s Logical Investigations where he wrote of the “objective interconnection which ideally pervades scientific thought, and which gives ‘unity’ to such thought” (Husserl 2001a[1913]: 144). Petrażycki expressly refers to Husserl’s characterization of science when he analyses the logical foundations of scientific knowledge and defines the tasks for his own Wissenschaftslehre (see Petrażycki 1923: 478). A task mentioned by Husserl, also pursued by Petrażycki, involves, “the investigation of the conditions for the realization of valid methods as well as the formulation of the rules we follow when we … outwit the truth, … demarcate sciences, and build them” (Husserl 2001a[1913]: 144). According to Petrażycki, the system of sciences of his time was, on the one hand, far from being logically correct and, on the other hand, contained redundant scientific disciplines, or “theoretical pleonasms” (cf. 2010[1908]: 446) due to a lack of logically sound differentiation in their respective methods. In order to streamline the system of scientific knowledge, Petrażycki employed three “tools”: 1. the principle that theories7 should be adequate (or the principle of adequacy); 2. the theorem of n +​1 theories; 3. the positional classification of sciences.

The Principle of Adequacy The principle of adequacy can be regarded (1) as a methodological standard establishing how theories should be constructed and (2) as a way of simplifying the system of scientific knowledge. I will address each of these features in turn. As previously stated, Petrażycki asserted that theories (and he regarded sociology as a theoretical science) should be formulated in accordance with the principle of

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adequacy.8 This principle states that, in a theory, the theoretical statement, or predicate, should be connected to a proper, or commensurate, class-​concept, which is to say, a concept that is neither excessively narrow nor excessively broad. In other words, according to Petrażycki: By “adequate” scientific theories we understand theories in which what is stated (the logical predicates, the predicates together with their foundations) is true in a precise way as to the class of objects about which it is stated (or thought). 2010[1908]: 431–​2 According to Petrażycki, it is impossible to formulate an adequate theory for such a class-​concept as “10-​g ram-​weighing cigars” (2010[1908]: 432), just as, according to Husserl, it is impossible to establish a science of “prime numbers, of trapezia, … of lions, [or] of all three taken together” (2001a[1913]: 12). Petrażycki distinguishes four kinds of inadequate theories: (1) limping theories, where the theoretical predicate is referred to a class-​concept that is too narrow; (2) jumping theories, where the theoretical predicate is referred to a class-​concept that is too broad (2010[1908]: 439); (3) limping-​and-​jumping theories, where the theory is at once too narrow and too broad; and (4) absolutely false theories, where the theory is completely false in reference to the class-​ concept (444). According to Petrażycki, the sociological theories that absolutize a given factor as the basis of all social life are jumping theories in that their predicate exceeds the limits of truth constituted by the commensurateness between the logical subject and the predicate (440). Petrażycki suggested that they could become true if their theoretical predicate’s domain of truth were restricted; in other words, if they were formulated not for entire classes of phenomena but only for proper subclasses. However, besides being a guide for theory construction, the principle of adequacy also streamlines the system of science or—​as Petrażycki puts it—​serves as “a supreme guiding principle for a proper systematization of theoretical knowledge” (ibid.: 446). Petrażycki regarded as the main problem of scientific research the “discovery” of proper classes of phenomena capable, as such, to play the role of subjects in adequate theories.9 This, in turn, would help achieve logical unity, completeness, hierarchy, and adequate organization in the overall system of science, or, following Husserl, in the world of ideally perfected science (2001b[1913]: 89).The application of the principle of adequacy in all the domains of science, according to Petrażycki, inevitably leads to “the assignment of each scientific statement … to a proper class and to the positioning of each specific theory in the proper order of supremacy, subordination, … etc.” (2010[1908]: 446), as well as “to the detection and removal of gaps in the system of theoretical knowledge …; gaps consisting of the absence of necessary disciplines” (446–​7).

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We can conclude that Petrażycki’s primary objective was to carry out an “adequatization” of the system of sciences, which, in turn, would make it possible to present the scientific knowledge as a collection of adequate theories.

The Theorem of n +​1 Theories Petrażycki’s theorem of n +​1 theories also contributes to the logical unity and completeness of the system of scientific knowledge. This theorem, which follows from the principle of adequacy, states that where there are n species of objects belonging to the same genus, there must necessarily be n +​1 theories (2010[1908]: 436–​7).10 Petrażycki gave a more precise formulation of this theorem during his Warsaw period: if there are two species a and b, then a properly established theoretical science must consist of (1) an adequate theory for the species a, that is, a theory about what constitutes the specificum of this species as distinguished from the species b … , (2) an … adequate theory for b, and (3) an adequate theory for a +​ b, i.e., for the class comprising both species—​a higher, … theory for the genus. Petrażycki 1939b[1925–​26]: 100 As pointed out by Petrażycki, this theorem also aims at removing gaps in the theoretical sciences as it sets forth the methodological necessity for constructing many theories and even completely new sciences that are currently unavailable (2010[1908]: 437).

Petrażycki’s New Classification of the Sciences To understand the place of sociology in Petrażycki’s system of sciences, it is necessary to briefly discuss the distinction he makes between the theoretical and practical sciences. These sciences are distinguished based on the kinds of judgments they involve.11 Petrażycki first identifies three types of judgments: 1. main ones, i.e., theses, 2. bases, the foundations of the theses, and 3. accessoria (examples, graphics). He then argues that the sciences should be classified according to their theses, that he divides into the objective-​cognitive and the subjective-​relational. Objective-​ cognitive theses are evaluatively neutral and truth-​apt (i.e., capable of being true or false). Subjective-​relational theses express evaluations, wishes, norms, and are not truth-​apt.

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Petrażycki further argues that the bases of objective-​theoretical theses must all be of an objective-​cognitive nature, while this is not the case with subjective-​ relational theses (1939b[1925–​26]: 44–​7). However, he argues that whether it be objective-​cognitive or subjective-​relational, a given science should not have a combination of objective-​cognitive and subjective-​relational theses as typically found in the social sciences, including art history and political economy (ibid.: 47, note 3). Thus, we can recast Petrażycki’s differentiation between the theoretical and practical sciences as follows: the theoretical sciences consist of adequate theories, that is, of methodologically founded systems of truth-​apt objective-​cognitive theses as well as those theses’ respective objective-​cognitive bases and accessoria. By contrast, the practical sciences are systems of non-​truth-​apt subjective-​relational theses, the bases of which may consist of both objective-cognitive and subjective-relational judgments. These characterizations point to a possible connection between the theoretical and practical sciences, and to the fact that, for Petrażycki, the theoretical foundation of practical knowledge is likely a necessary condition for its scientific soundness. This also explains why Petrażycki frequently referenced the maxim “know to predict, predict to act.” Further, it is perhaps not too farfetched to propose that Petrażycki may have believed that among the bases of certain subjective-​relational judgments, or even of all practical sciences, there must necessarily be objective-​ cognitive judgments.12 Petrażycki contends that his classification of the sciences is novel in two ways. First, as distinct from previous attempts, his “is not based on a classification of the objects of knowledge, [but] on a classification of the [judgments13] concerning those objects” (1939b[1925–​26]: 51).14 Petrażycki considered it “necessary to break with the tradition of classifying sciences as such, that is, as peculiar enormous fogs” (ibid.: 85, note 10), due to their being made up of heterogeneous judgments. Second, unlike previous descriptive classifications of existing sciences, Petrażycki claimed that his classification demonstrated the logical necessity of reforming the existing sciences and creating new ones in accordance with the principle of adequacy.This attains the logical completeness of scientific knowledge. Petrażycki regarded sociology as a theoretical science and criticized any conflation of theoretical and practical approaches. He thought it was scientifically incorrect to “solve theoretical questions in accordance with practical opinions or convictions, to take as true what one wants to regard as true for this or that practical goal” (1939a[1920–​23]: 84). Petrażycki levels this criticism at the sociological conceptions of Comte, Marx, Sombart, and others, who, according to him, conflate objective-​cognitive and subjective-​relational judgments (1939b[1925–​ 26]: 102; 1939a[1920–​23]: 82–​6). Petrażycki uses Comte’s sociology to demonstrate how his concept of adequacy must be used to develop the sciences. According to Petrażycki, even if Comte’s famous theory of the three stages of social development (the theological,

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metaphysical, and positive) should be considered correct, it could not qualify as sociological (1939b[1925–​26]: 101). This is because, on the one hand, much of his “sociology” consists of history15 and subjective-​ relational judgments—​ and thus contains elements completely extraneous to it. On the other hand, Comte’s sociology considers only some social phenomena, that is, “people’s views, religious convictions, and philosophical and other sciences” (ibid.), and is therefore a “limping” theoretical endeavor in Petrażycki’s sense.

The Object of Sociology According to Petrażycki Given Petrażycki’s epistemological ideas, we may inquire how it is possible to create an adequate sociology. In other words, how does an adequate sociological class (i.e., the object of sociology) look like? To begin with, for Petrażycki the term society (obščestvo) “does not deserve the honor of being made the central scientific term for a specific science [called] ‘sociology’ ” (2010[1908]: 457, note 47). Petrażycki understood sociology as a science to be developed in accordance with his theorem of n +​1 theories, and is thus the highest theory, in that it is concerned with the genus of social processes (1939b[1925–​26]: 100). It is the most general theory (or science16) as compared to other sciences, such as the theory of law, the theory of state, the theory of morality, the economic theory, the theory of religion, etc., Petrażycki writes: [a]‌bove n special social theories a (n +​1)th theory can and should be formulated …, a higher general theory that does not deal with law or economy, religion, etc. but with completely different things, i.e., with that which is common to and characteristic of social processes in general, namely, the law of social evolution in general, etc. 1939b[1925–​26]: 100, first two emphases in the original, last emphasis added Notably, in his New Foundations of Logic Petrażycki writes: A true sociology … should explain the emergence of specific changes in the psyche of individuals or masses of individuals with the help of the study of the processes of psychical contact, of the mutual emotional and intellectual “contagion” of people coming into contact with one another—​processes that exist and already operate in the realm of lower animals (and thus for sociology to avoid being a limping science it should not confine itself to humans17), but play an especially important role in human life due to the development and existence of language. Among the processes to be explained by sociology is the emergence of new psychical products that are adapted, not to the needs of the individual, but to the needs and the necessities of social life, including

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such social directives as morality, law, and religious beliefs, that sanction and strengthen those social directives [dyrektywy], etc. 1939b[1925–​26]: 101–​2, emphases in the original Petrażycki conceived of sociology as a science that should proceed, not from the existence of law, morality, and religion, assumed as givens, but “from the state of affairs when such social directives … did not yet exist, and explain their emergence and development in a general form” (ibid.: 102). More generally, Petrażycki also underscores that a genuine sociology “should not even adopt as its point of departure the existence of organized social groups (from families to states) but investigate their genesis and evolution, studying their socio-​psychical, or motivational processes” (102–​3). In this connection, issues like the hierarchical structures of nation states do not come within the purview of sociology but rather within that of the general theory of law because those structures are constituted by law and result from its organizing function. In other words, since according to Petrażycki, law, ontologically, is a psychical phenomenon, the fact that among the effects this psychical phenomenon produces are social phenomena like states or market economies is irrelevant when it comes to the classification of the sciences. This classification must rely exclusively on the ontology of proximate causes, and not on the ontology of the effects they produce, regardless of their involving multiple individuals. Thus, Petrażycki held that a sociological concept of state is a contradiction in terms: If we are dealing with a sociological science, it cannot be a science of state. By the same token, a science of state is not sociological (1939b[1925–​26]: 104). Thus, according to Petrażycki, sociology should be regarded as a superior genus of theory, the objects of which are language-​mediated socio-​psychical motivational processes; it is a science that focuses on their origins and evolution.18 It is precisely through this evolutionary focus that the social and ethical relevance of those socio-​psychical processes discloses itself, that is, the unconscious genius19 of the social adaptation of human beings, a social adaption that, among other things, involves the eventual predominance of altruistic motivations (or love) over selfish ones. As pointed out by Jerzy Lande: “With some reservations, sociology may be called the theory of social development or of the development of culture” (1975[1958]: 29). Petrażycki’s accepted Darwinism but he did not believe that it could alone explain all the kinds of “unconscious genius” that manifest themselves in the adaptations that take place in history.20 Notably, for Petrażycki, Darwinism cannot explain “the socio-​psychical adaptation that takes place independently of the extinction of individuals and the dissolution of groups.” Further, “it ignores the peculiar processes occurring on the basis of people’s conversations with one another, and in general the processes of psychical communication between the members of social groups” (2000[1909–​10], § 51: 597, 2011[1909–​10]: 329.To be sure, for Petrażycki, in all spheres of social life, and thus, in science as well,21 there occur processes

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analogous to the struggle for existence and natural selection. These, however, are not due to the “sickle of death” but to communication processes that produce the unconscious and purposeful selection of certain behavior-​motivating emotions. As such, sociology investigates the evolutionary mechanisms that involve the “selection and development of emotions” (2000[1909–​10]: 51: 598, 2011[1909–​ 10]: 329). This view of sociology fits into the evolutionary paradigm that prevailed in the social sciences during second half of 19th century. However, by purifying sociology of biological assumptions and rejecting the social Darwinist notions of “struggle for existence” and “survival of the fittest,” Petrażycki turned natural selection into an “unconscious-​ ingenious” language-​ mediated socio-​ psychical adaptation. It is unclear if Petrażycki acknowledged the existence of the sociology of law. On the one hand, the absence of the sociology of law in his system of legal sciences22 can be explained by his regarding sociology of law as a subspecialty of general sociology. On the other hand, it is possible that he regarded sociology of law as a redundant science, namely, as a theoretical pleonasm that duplicates the theory of law. But, Petrażycki’s theory of law is profoundly sociological. He reveals its sociological nature when—​after describing the logical structure of legal judgments23—​he turns to the analysis of their motivational impact, among which is the causation of right-​and duty-​holders’ coordinated behaviors (e.g., market economies or states). The following passage supports the redundancy of sociology of law: [t]‌he misunderstanding concerning sociology manifests itself in an even more striking and clear way … when various authors call “sociological” various special theories—​sciences very far from sociology … —​and when we confront various schools or approaches presenting themselves as sociological, e.g., the “sociological” approach in the legal science, “sociology of law [socjologia prawa],” “the sociological approach in the science of criminal law,” etc. 1939b[1925–​26]: 104, emphasis added However, I believe that sociology of law as a subspecialty is not in contradiction with Petrażycki’s methodological position and could be accommodated in his system of sciences. Of course, it should be a theory on the emergence and evolution of legal (i.e., imperative-​attributive, passive-​active) motivation that causes the emergence of mutually conditioned behaviors. Such a sociology of law would be premised on the evolutionary nature of socio-​psychical processes. If Petrażycki’s general sociology is to disclose the “puzzling purposefulness” (Lande 1975[1958]: 32 f.)24 of the evolutionary development of culture toward a goal, sociology of law should explain ethical progress, the main “tool” of which, according to Petrażycki, is precisely law, which, due to its imperative-​attributive

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nature, causes the emergence of coordinated behaviors (first and foremost, states and market economies). According to Petrażycki, the emergence of law is a necessary consequence of socio-​psychical adaptation, which causes the constant selection of behavioral motivations that are oriented to the good of the group and to the decline of selfish motivations. Thus, from a Petrażyckian perspective, the difference between sociology of law and the theory of law could be reconstructed as follows. Sociology of law investigates the emergence and evolution of legal motivation, whereas the theory of law investigates its psychical ontology, and the socio-​psychical functioning of its motivational action. An indirect argument supporting this interpretation is Lande’s remark that “[i]‌n [the] lectures I attended, [h]is general sociology was further narrowed down to the sociology of ethical phenomena, that is, to the theory of the origin and development of law and morality” (1975[1958]: 35, emphasis added).

Leon Petrażycki vs. Eugen Ehrlich It has become quite common to compare Petrażycki’s ideas with those of Eugen Ehrlich. For example, Reza Banakar writes that both Ehrlich and Petrażycki “were critical of analytical jurisprudence for its conceptual formalism[] and neglect of empirical facts”25 and developed “concepts of law which are empirically tuned and broader in scope than what most jurists recognize as the law proper” (Banakar 2009: 67–8). One could imagine how Petrażycki would have reacted to such a comparison. I will show that, from his standpoint, Ehrlich’s sociology of law is precisely an item worth being included in the museum of scientific pathology Petrażycki was writing about when characterizing the sociologies of his time (2010[1908]: 440). Before offering arguments for this conclusion, I will first explain why it is important to compare Petrażycki with Ehrlich. As rightly pointed out by Roger Cotterrell, much of the criticism leveled at Ehrlich’s sociology of law was evoked by sociology of law’s inability to meet the most basic requirements of scientificity (Cotterrell 2009: 86). Unlike Ehrlich, Petrażycki devoted much effort to the development of the methodological foundations of sociology. Thus, comparing their positions makes it possible to tackle the very issue of the foundation of the social sciences. Petrażycki’s and Ehrlich’s sociological projects can be compared in several respects, and each comparison establishes fundamental differences between them. This is the case concerning how they evaluated the role of customary law in the development of legal culture,26 their attitudes toward the Free Law School,27 and their position concerning the role of interest in law. Thus, Petrażycki would not have agreed with Ehrlich’s contention that “people always act in their own interest” (1913: 49; 2017[1913]: 61), and that only a scientist who provides a comprehensive

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description of the interests that prompts people to action would be able to address “all the questions of the science of society” (ibid.).28 Here I focus on Petrażycki’s and Ehrlich’s methodological differences. A fundamental tenet of Petrażycki’s methodology is that, in general, the inductive method is not intended for gaining theoretical knowledge, and therefore it is also not intended for gaining sociological knowledge. Petrażycki underscores that theoretical knowledge is not a copy or a protocol (protokol) of reality and is fundamentally different from knowledge gained through observation (2010[1908]: 460). Theories are not statements about empirically observable objects, but rather statements about class-​concepts, which (see the “Historical Remarks on an Unaccomplished Project” section) he saw as ideas of everything that is thinkable as possessing certain features. From Petrażycki’s standpoint, classes, as rationally built abstract objects, are not identical with empirical things and thus cannot be subjected to observation. No collection of “facts” available to empirical observation can constitute a logical class. Petrażycki writes that in no way do “class-​concepts, as it were, comprise really existing objects only, and so that classes don’t amount to more or less numerous real objects” (409). On the contrary, he maintained that many class-​concepts “comprise … exclusively objects that are only thinkable, but that are absolutely not encountered in nature” (ibid.).29 Accordingly, Petrażycki believed that mere data collection is suitable only to those descriptive or historical sciences concerned with spatio-​ temporally individuated events rather than to theoretical sciences strictly understood (see Glossary, “theoretical science”) (460). This is because induction consists of (1) the preliminary empirical observation of a limited domain of objects and of (2) a subsequent generalizing abstraction that inevitably relies on features similar among the observed objects. Thus, from Petrażycki’s perspective, induction is unsuitable to conceptualization with classes as referents, and also to any system of theoretical knowledge, including socio-​legal knowledge. Because Petrażycki’s point of departure was the incommensurability of theoretical and empirical knowledge, this makes for the logical impossibility of constructing theories through the inductive generalization of a collection of observed “facts.” Clearly, he pursued an anti-​inductivist methodological program.30 Eugen Ehrlich took the exact opposite position, contending that “sociology, as well as sociology of law, should be a science of observation” (1913: 382; 2017[1913]: 473).Thus, he remarks that, due to its deductive nature, jurisprudence (i.e., legal dogmatics) is “in stark contradiction [i[m] schroffen Widerspruch] with any true science, the prevailing method of which is inductive.” He was convinced that “by observing facts and collecting experiences” it is possible “to deepen our insight into the essence of things” (1913: 6; 2017[1913]: 9). According to Ehrlich’s adversary Hans Kelsen (1915), Ehrlich’s sociology of law rested on the naive idea that science is possible only if inductive, and that law is a “fact,” namely, that it amounts to natural regularities to be established in an inductive way and through

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causal connections. Notably, Ehrlich maintained that “law … is made of the matter that we can take from … sensorially perceptible reality,” or, to put it otherwise, of “facts … that we have observed” (Ehrlich 1916: 848, quoting Ehrlich 1913: 68; 2017[1913]: 84).As Ehrlich wrote,“[t]‌hese facts must have been in existence before the concepts of law and legal relation began to dawn in the human brain” (ibid.). When explaining the methodology of sociology of law, Ehrlich writes: The investigation of living law is … the necessary starting point of sociology of law. Its attention will be directed primarily to the concrete, not the general. It is only the concrete that can be observed. What the anatomist places under the microscope is not the human tissue [in the abstract] but a specific tissue of a specific human being … The same goes for the investigator of law. Ehrlich 1913: 405; 2017[1913]: 501, emphasis added It’s difficult to imagine a position more opposed to Petrażycki’s. According to him, the inductive method would turn sociology into a sort of ethnography, that is, “a pile of sometimes curious and dubious pieces of information drawn from the everyday life of savages” (2010[1908]: 34). Thus, according to Petrażycki, sociology’s empiricist interpretations would transform it into a descriptive science, whereas, according to him, sociology should be a theoretical science in a strict sense31: Sociology should not be a description of certain concrete particular phenomena—​familial phenomena, state phenomena, or other phenomena, but rather a general, universal theory concerning social phenomena, social life in general. 1939a[1920–​23]: 76, emphasis added As previously indicated, this position corresponds to Petrażycki’s idea that no scientific theory, and thus no sociological theory either, can be inductively constructed. This is where the difference between Ehrlich’s empirical sociology of law and Petrażycki’s theoretical one fully manifests itself. Given that Ehrlich believed that law emerges from observed facts, one could ask: What are the facts whose observation amounts to the subject-​matter (or objects, to use Petrażycki’s terminology) of legal sociology? Ehrlich answers this question by simply listing the phenomena that, according to him, should be the subject-​matter of sociology of law. These are practices, authority and possession, relations, contracts, statutes, wills, and so on. Legal provisions are investigated solely as facts, that is, according to their origin and action. To these, he adds “all social forces conducive to the formation of law.” It is to these phenomena that “the sociologist must turn her eye[;]‌… [She] must collect the facts that give rise to these phenomena, and explain them” (1913: 382–​3; 2017[1913]: 474). It is the “[d]irect observation of the human relations of a legal nature, the generalization of the

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results of observation …, that is the scientific part of legal science [Jurisprudenz]” (1913: 385; 2017[1913]: 476–​7). One problem with the topics of sociology of law listed by Ehrlich is that—​ pace Ehrlich—​they are unavailable to “direct empirical observation” (ummittelbare Anschauung, 1913: 260, 286, 288, 374, 38332). To understand this difference between Petrażycki and Ehrlich, one should bear in mind the following. First, and generally, Petrażycki distinguishes between sensations (oščuščenija) and perceptions (vosprijatija) and understands the latter as the result of an activity on the part of the subject.33 Second, and more specifically, Petrażycki criticizes the objectivistic conception of legal facts,34 which regards them as “something objectively existing” (2000[1909–​10]: 366). Petrażycki maintains that they exist exclusively as objects of representations. According to him, no single fact can be detected in the external world as a legal fact. The legal qualities of a particular fact exist only within the representation of a given fact. These “facts” and “qualities” function as causes and conditions for ascribing to oneself or others obligations and rights (ibid.). In other words, legal facts are constituted within the process of interpretation as causes of the coming into existence, change, and termination of the experience of rights and obligations. Petrażycki underscores that external events cannot produce those effects; rather, they are produced by corresponding representations (2000[1909–​ 10]: 367). In referring to the representation of a given fact, Petrażycki was likely implying that in legal “reality” facts do not exist independently of their meaning as construed by people (or subjects, see “subject1,” in the Glossary), and therefore a more accurate term would be “meaning” of a given fact. To better understand Petrażycki’s position, we turn briefly to his conception of social reality.

Realism and Nominalism as Methods for Understanding Social Reality All methodological positions presuppose or constitute a certain ontology. Answers to the question, “What is social reality?” amount to two basic types of sociological understandings: 1. sociological realism, that assumes that social reality is sui generis, irreducible to the interactions of individuals, and 2. sociological nominalism, that assumes that social reality boils down to individuals and their interactions. Petrażycki rejected the idea that social reality is an entity comparable to a person, an organism, or a thing and regarded this approach as caused by the tendency to hypostatize concepts. He criticized social organicisms as forms of naive

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realism or naive constructivism. Naive realism involves the erroneous identification of a mental object35 with something existing in the external world. This fallacy occurs if, in searching for a given (mental) object, we readily encounter some external counterpart to which we can point “with our finger”—​in Wittgenstein’s words.36 Naive constructivism occurs when we cannot easily find an external counterpart but we also cannot deny the existence of a given object (e.g., a state), and thus we wrongly construct fanciful entities in the external world.37 In the social sciences, naive constructivism can be regarded as a form of (wrong) realism amounting to “the metaphysical construction of entities … of a fantastic nature,” that is, “superindividual organism[s]‌of a personal nature” “with an entire system of organs” (Petrażycki 2010[1908]: 399–​400). Such objectifying or reifying conceptions of social reality are discounted by a sociological view of people as sole subjects of social action. Further, the main reason Petrażycki rejected realistic conceptions was that they fail to consider the role played by individuals in the constitution of socio-​legal reality. In particular, they neglect the sociogenetical effects resulting from the normative-​motivational processes that involve people’s beliefs in the existence of collective entities. This is why, according to the Polish historian, Andrzej Walicki, Petrażycki chose to call his theory psychological, and not socio-​psychological. His intentions seem to be clear: he wanted to emphasize that the social does not exist outside or above the individual (Walicki 1992[1967]: 255).

Leon Petrażycki and Max Weber Petrażycki’s critical attitude toward the naive-realistic or naive-constructivistic conceptions of social reality gives us the opportunity to relate his ideas to those of Max Weber. While Petrażycki was clearly acquainted with Weber’s works, it is unknown whether he was directly influenced by them. It was Adam Podgórecki who first called attention to the similarity between some of their ideas when writing that Petrażycki’s “conception of moral and legal impulsions resembles in some aspects Weber’s differentiation between goal-​and value-​oriented social behavior” (1980–​81: 190). Even though this comparison is not quite precise (both moral and legal emotions, understood as ethical emotions, can more accurately be compared to Weber’s value rationality), it was nonetheless not developed further.38 A. Javier Treviño noted that Petrażycki’s technique of introspection is similar to Weber’s conceptual method of Verstehen (2011: xxii). As pointed out by him, Weber regarded Verstehen as a type of interpretive understanding of cultural phenomena (actions and activity)” that “seeks to construct the relations of the parties to one another from the point of view of the ‘inner’ kernel of their behavior, from the point of view of their mental ‘attitudes’” (ibid., quoting Weber 1978[1921–22]: 884).

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Weber, like Petrażycki, distinguished between two kinds of interpretive understanding. Weber’s observational understanding (Petrażycki’s external observation) involves “deriving the meaning of an act or symbolic expression from immediate observation without reference to any broader context,” while explanatory understanding (Petrażycki’s internal observation) involves placing “the particular act … in a broader context of meaning involving facts that cannot be derived from immediate observation of a particular act or expression” (Talcott Parsons’s note in Weber 1978[1921–​22]: 58, quoted in Treviño 2011: xxii–​xxiii). The conceptual affinity between Weber’s and Petrażycki’s ideas is apparent in several ways. First, both scholars adopted the principle of value freedom in the social sciences. As pointed out above, for Petrażycki, value freedom is one of the constitutive principles of objective-​cognitive knowledge. As for Weber, he formulated it not only for sociology in general, but also for political economy, jurisprudence, and the sociology of art (Weber 1968[1917]; 2012[1917]). Second, both scholars sharply demarcated sociological analysis from juristic, or legal-​dogmatic, analysis. For example, Weber asserts that for legal-​dogmatic purposes “it may be convenient or even indispensable to treat social collectives, such as states, associations, business corporations, foundations, as if they were individual persons” (1976[1921–​22]: 6; 1978[1921–​22]: 13), that is, “as the subjects of rights and obligations, or as the performers of legally significant actions” (ibid.). Collective subjects of rights and obligations, as objects of legal-​dogmatic analysis, are “representations [Vorstellungen] … in the heads [Köpfe] of … people” (1976[1921–​22]: 7; 1978[1921–​22]: 14, emphasis in the German original39) to which they orient their actions.Thus, according to Weber, a modern state—​which he conceptualized sociologically “as a complex of social interactions of individual persons”—​“exists [besteht] to a relevant degree … because certain people orient their actions to the representation that it exists or should exist in a certain fashion” (ibid., emphases in the German original). Unlike legal dogmatics, sociology does not concern itself with the actions of collective subjects. According to Weber, sociologically, collective subjects (states, nations, corporations, families, etc.) are only certain types of behavior of particular individuals, “since these alone can be treated as agents in a course of subjectively understandable action” (1976[1921–​22]: 6; 1978[1921–​22]: 13). The same distinction between a sociological40 and a legal-​dogmatic approach can be found in Petrażycki’s works. Collective legal subjects, be they juristic persons or states, are not social realities. Or, to be precise, for Petrażycki, the question of their social reality should not concern legal dogmatics. Petrażycki regards them exclusively as “subjectual representations.”41 In other words, they are logical subjects in legal-​dogmatic judgments. They don’t have reality apart for a mental one.Thus, Petrażycki regards Otto von Gierke’s characterization of juristic persons as social organisms to be absolutely “useless and unproductive” for legal dogmatics (2010[1900–​03]: 377). By the same token, from a sociological perspective, political

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states are types of organized social groups. They are socio-​psychical realities made up of the complex combination of cognitive-​emotional experiences—​that is, legal phenomena considered from the perspective of their motivational action—​and of the resulting coordinated individual and mass behaviors. This complex combination in turn gives rise to the “naive-​projective” ideas that states have bodies and organs, as well as a superindividual reality (2000[1909–​10]: 176).42 Petrażycki’s theory of law reveals its sociological character when he turns from the individual’s cognitive-​emotional legal experiences to the analysis of their motivational nature and how they produce forms of social behavioral coordination (e.g., states and market economies). Similarly, for Weber, sociology studies “the sociological relevance of the empirical being-​in-​force [Geltung] of given legal norms” (1968[1913]: 181; 2012[1913]: 281). This amounts to the fact that certain “ideas [Vorstellungen—​a term also meaning ‘representations’] concerning the ‘meaning’ of a legal provision (represented as in force) dominate within certain people’s heads”; a fact that, “under certain circumstances, … results in the possibility that actions be rationally oriented to certain expectations” (ibid.). This is to say that those representations may substantially affect behavior. A third similarity between Petrażycki’s and Weber’s understandings of social reality involves their sociological nominalism. Both premised their investigations on the idea that sociology’s basic analytical units could not be reified understandings of social wholes. According to Petrażycki, those units are motivationally conditioned behaviors. Notably, Petrażycki distinguished between two kinds of legal motivation: active-​legal motivation, which proceeds from awareness that one’s right is correlative to somebody else’s duty, and passive-​legal motivation, which proceeds from awareness that one’s duty is correlative to somebody else’s right. Petrażycki thus remarks that “the socio-​legal system43 rests on the correspondence, or coordination, of passive and active legal motivations as well as of the corresponding types of behavior” (2000[1909–​10]: 131). Weber’s starting point was his concept of social action, which he regarded—​ much as did Petrażycki—​as the basic element of sociological investigation. Weber wrote that [c]‌oncepts like “state,” “guild,” “feudalism,” and the like … designate, for sociology, categories for certain kinds of joint actions [Zusammenhandeln], and the task of sociology is therefore is to reduce them to “understandable” actions, and this means, with no exception, to the actions of the involved individuals 1968[1913]: 181; 2012[1913]: 280–​1 In this connection, it should be emphasized that Weber, when adopting social action as a basic element for sociology—​again like Petrażycki—​contrasted his own methodology with organicism, which, according to Weber, “seeks to explain social interactions by using as points of departure ‘wholes’ (e.g.,‘a national economy’), …

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somewhat in the way that a physiologist treats … the role of a bodily ‘organ’ in the ‘economy’ of the organism” (1976[1921–​22]: 7; 1978[1921–​22]: 14–​5). A fourth similarity is that both Weber and Petrażycki regarded normative regularities and social orders44 as representations that exist within the actor’s consciousness and to which they orient their actions. Thus, Weber emphasizes that normative regularities and social orders exist to the extent that “actions oriented towards [them], in terms of their average meant meaning [Sinn45] … take place on a practically relevant scale” (1968[1913]: 186; 2012[1913]: 284). Similarly, Petrażycki observes that “the operation of … motivation[s]‌results in people having to reckon with the actions they cause and to conform to the social order [they bring about] much as we reckon with the laws of nature” (1909–​10[2000]: 543–​4). In other words, human motivations cause actions, and people, when acting, both “to orient themselves towards others’ actions” (to use Weber’s terminology) and to comply with the social order they engender. A fifth parallel between the two thinkers is that, when choosing social action as a departure point for sociology, both turn to the analysis of its motivations (i.e., conscious causes) as its essential features. For Petrażycki, a scientific theory of human motivation is a necessary condition for the construction of all sciences that deal with individual and mass behavior, including history (2010[1908]: 511). Further, he regarded as erroneous and particularly dangerous two conceptions in the social sciences of his time: the hedonistic theory of motivation premised on the egoistic nature of human beings (ibid.: 512) and the Marxist understanding of motives as exclusively materialistic. According to Petrażycki, humanity’s ethical progress will eventually eliminate the motivational role of economic interests (2010[1896–​97]: 35). He characterizes those conceptions as both monistic and anti-​historical and contrasts them with his own theory that he describes as “pluralistic” and “evolutionary” (2000[1909–​ 10]: 38, note 1). Comparing Petrażycki’s theory of motivation with Weber’s sociological methodology reveals that the study of the motivations of actions does not necessarily suggest its psychological nature. It is simply a necessary component of the sociological method.46 Thus, according to Weber, the general task of sociology consists of “the interpretation of action in terms of its subjective meaning” (1976[1921–​ 22]: 3; 1978[1921–​22]: 3), which requires making connections between the various actor’s motivations (cf.Weber 1976[1921–​22]: 4; 1978[1921–​22]: 10).This, in turn, is what makes it possible to conduct an understanding of the meaning of behavior (ibid.). According to Weber, a motive “is a complex of subjective meaning which seems to the actor himself or to the observer an adequate ground for the conduct in question” (1976[1921–​22]: 5; 1978[1921–​22]: 11). Accordingly, sociology aims at identifying “subjectively understandable motivation[s]” (1976[1921–​22]: 4; 1978[1921–​22]: 8), understood as “meaning complexes” (1976[1921–​22]: 6; 1978[1921–​22]: 13) by virtue of which we can reach “an explanation of the actual course of behavior” (1976[1921–​22]: 4;

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1978[1921–​22]: 9). This being said, Petrażycki’s analysis of the motivations of behavior is quite close to Weber’s aim of understanding the meaning of causally conditioned actions. Also noteworthy is that Alfred Schütz, a representative of phenomenological sociology, maintained that “social things are only understandable if they can be reduced to human activities; and human activities are only made understandable by showing their … motives” (1960: 214), As such, Schütz contends that causal factors cannot help us understand “the Other” and his behavior. To do this, “[w]‌e have to understand his motives, the ‘reasons,’ for his actions, and to obtain knowledge of their context” (1970[1953]: 31). According to Schütz, the analysis of motives, which is an essential part of the theory of social action (1960: 214), makes it possible to “go back to th[e] ‘forgotten man’ of the social sciences” (ibid.: 207), the individual social actor. Schütz regards social interactions as “intersubjective motivational context[s]” (1932: 177; 1972[1932]: 159, emphasis in the original), and these latter as “the basic law of personalistic life” (1970[1953]: 30), making it possible to observe “the Other’s spiritual I” (ibid.) as “subject to the laws of motivation” (31). By defining motives as “complex[es] of meaning” (1960: 212), Schütz maintains that in order to understand human actions “it suffices … [to] reduce the other’s act to its typical motives, including their reference to typical situations, typical ends, typical means, etc.” (1960: 213). Finally, a sixth correspondence is that both Weber and Petrażycki analyze the types of motivation. Petrażycki’s two types, the teleological and the normative, can be compared to Weber’s instrumentally rational and value-​rational types of social action—​based, respectively, on “expectations as to the behavior of objects in the environment and of other human beings” (1976[1921–​22]: 12; 1978[1921–​22]: 24) and on the “conscious belief in the value for its own sake of some … behavior” (ibid.).47 Moreover, Petrażycki’s teleological and basal motivations48 can be compared to Schütz’s in-​order-​to motives and because-​motives (1972[1932]) as typical meaning complexes. In summary, we may say that comparing Petrażycki’s sociological project with Ehrlich’s and Weber’s allows us to conclude that, from Petrażycki’s viewpoint, social reality is a construction—​a product resulting from language-​mediated cognitive-​emotional processes taking place within the person’s consciousness.

Notes * Translation from Russian into English by Edoardo Fittipaldi. All passages quoted from the Russian translations of German sources have been directly translated from German into English. This is necessary due to the strictly literal way scholarly books use to be translated in continental Europe and because the author often relies on details that sometimes are omitted in the English translations. However, for the reader’s convenience references to the English available translations are given.

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1 A reference to this project can be found also in his Introduction to the Study of Law and Morality (2010[1908]: 441, 1st ed. 1905). 2 Throughout this chapter, the term “object” will be also used when in English “subject” or “subject-​matter” would be more appropriate. This is necessary because in Russian (but also in German) the couple object/​subject (ob”ekt vs. sub”ekt) is used differently than in English. In general, Petrażycki, defines sciences ontologically by referring to thought-​objects (see next note). This requires that the term “object” be used. Then, based on his ontological definitions, Petrażycki determines the subjects (or subject-​matters) of sciences. However, it should be borne in mind that he uses the term “subject” only to refer to the object of predication in a judgment (see Glossary). In order not to disrupt Petrażycki’s accurate terminology it is necessary to render it into English literally. (Note by the translator.) 3 Petrażycki uses the Russian term myslimyij ob”ekt, lit., “thinkable object.” The meaning of this phrase is close to that of “intentional object” but only rarely does Petrażycki stresses intentionality, or aboutness.These Petrażyckian phrases have been translated with “thought-​object,” a term understood to mean “mental entity.” (Note by the translator.) 4 Bertrand Russell (2007[1919]: 12) regarded intensional definitions as “logically more fundamental” than extensional ones, that is, definitions based on the empirical—​here and now—​set of objects corresponding to a given term and selected by their similarity. 5 By “tolerant ontology” the author means a conception of reality that includes not only subject-​independent objects (e.g., the US Capitol) but also objects present exclusively within one’s consciousness such as Scrooge McDuck, deities, debts, corporations, etc.—​regardless of their subject-​independent existence. Petrażycki makes this move because he believes that human motivation can be understood only by taking into account all sorts of objects. (Note by eds.) 6 More on these similarities can be found in Timoshina (2012: 177–​203). 7 On Petrażycki’s concept of “theory,” see Glossary. 8 This principle was subsequently used in Stanisław Leśniewski’s formal ontology, Tadeusz Kotarbiński’s praxeology, and Pitirim A. Sorokin’s sociology. 9 See Glossary, entries “subject2” and “class-​subject.” (Note by eds.) 10 For examples, see “theorem of n +​1 theories” in the Glossary. (Note by eds.) 11 In his posthumous and incomplete New Foundations of Logic (1939b[1925–​26], in Polish), Petrażycki introduced the new concept of position, which he defined as “the simple—​ not amenable to further analysis—​ meaning or content of judgments or sentences” (1939b[1925–​26]: 17, see also Glossary). Owing to space limitations, I will not discuss this concept here, and will instead speak of judgments as Petrażycki himself did in previous works (e.g., 2010[1908]). On Petrażycki’s notion of judgment, see Glossary. 12 This idea may seem incompatible with the Is/​Ought divide, or Hume’s law. However, this is not the case if one considers that “all … practically relevant … evaluations and decisions must be necessarily connected to some objective features of the situation being evaluated or object of decision” (Albert 1965: 175, emphasis in the original). 13 On this term, see note 11. 14 For example, depending on the nature of the theses produced by legal science (broadly understood as all the sciences concerned with law, as their object), we can distinguish between: (1) the theory of law, consisting of class (or general) objective-​cognitive judgments; (2) the history of law, consisting of spatio-​ temporally characterized (or concrete) objective-​ cognitive judgments; (3) the policy of law, consisting of

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subjective-​relational judgments of a teleological nature; (4) legal dogmatics, made up of subjective-​relational judgments of a normative nature; and so on. 15 According to Petrażycki, history is a theoretical science only in a broad sense since it is not concerned with class-​concepts, but with spatio-​temporally individuated events (see Glossary, “theoretical science”). 16 Petrażycki uses “theory” to refer to specific objective-​cognitive judgments on given classes of phenomena as well as to refer to sets of such judgments. As for the term “science,” he uses it broadly so as to include also subjective-​relational disciplines like legal policy and legal dogmatics. 17 This raises the question of whether Petrażycki truly believed that sociology should investigate human and animal processes alike. Against this reconstruction, the following passage is relevant: There are data in favor [of the view] that, among the … numerous species of beings on earth endowed with a psychical life (i.e., animals) only one species is characterized by the ability to experience those complex psychical processes that constitute legal phenomena, that is, homo sapiens, or humans; [these data support the view] that within this species the emergence of the ability to experience … legal phenomena, did not occur prior to the achievement of a particularly high legal of psychical culture—​as compared with the condition of the other animals—​, and, in particular, did not occur prior to certain linguistic achievements. 2010[1908]: 402 Thus, if sociology’s task is to explain the origin and evolution of law and morality, and animals are not capable of moral and legal experiences, the psychical experiences of animals are not of concern to sociology. 18 Lande held that for Petrażycki the object of sociology is “the ‘social process,’ understood as changes in individual and group experiences, and social behavior that occur in the course of adaptation” (1975[1958]: 29). 19 Petrażycki often uses the phrase “unconscious-​ ingenious wisdom” (bessoznatel’no-​ genial’naja mudrost’). 20 In Petrażycki’s writings history—​a concept that plays an important role in his classification of the sciences (see 1939b[1925–​26])—​is not to be understood as opposed to prehistory but simply as referring to all those events that occurred in the past from the standpoint of the historian. 21 Petrażycki considered science a social phenomenon. 22 Petrażycki identified six sciences dealing with law: (1) legal theory, as an objective-​ cognitive science made up of class-​judgments; (2) descriptive legal science; (3) history of law; and (4) legal prophecies, as objective-​cognitive sciences made up of judgments on spatio-​ temporally individuated phenomena; as well as (5) policy of law and (6) legal dogmatics, as subjective-​relational sciences based, respectively, on class and non-​class judgments (see 1939b[1925–​26]; on the concepts of class and non-​class judgments, see Glossary). 23 Petrażycki regarded normative judgments, as well as judgments in general, as emotional acts. See Glossary. 24 Cf. Petrażycki 2000[1909–​10], § 51: 597, 2011[1909–​10]: 329, where he uses the term zagadka, “riddle.” 25 Unlike Ehrlich, though, Petrażycki sharply distinguished between legal theory and legal dogmatics and advocated both for the pureness (čistota) of the latter vis-​à-​vis other sciences and for its strict adherence to the principle of legality. Further, Petrażycki

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held in high regard the works of German Pandectists like Georg Friedrich Puchta and Bernhard Windscheid and recommended the adoption of conceptual formalism for legal dogmatics. See Fittipaldi (2016: 501–​3) and Peczenik (1975: 91). 26 Petrażycki rejected the idealization of customary law (Fittipaldi and Timoshina 2017: 15) and advocated for its eradication (16), a proposition that was foreign to Eugen Ehrlich. Furthermore, unlike Petrażycki, Ehrlich conflated all forms of social (or non-​state) law into customary law and understood the latter as “those forms of life which—​without state intervention, and with the sole forces operating in life itself—​ have become the state, economic, and social order” (1907: 38). Their views could not be more opposite as Petrażycki sharply distinguished between customary and intuitive law (see Glossary). 27 If Ehrlich had “no doubt that in the modern Free Law Movement there comes to light, not only the progress of scientific knowledge, but also an actual shift as to the relation between state and society” (1913: 9; 2017[1913]: 13), Petrażycki was sharply critical of those ideas. He believed that their practical consequence would be “the self-​ decomposition and denial of the essence and the job of legal dogmatics” as well as the breach “of the supreme principle of legal dogmatics,” namely, “the principle of legality” (Petrażycki 1897: 386, cf. also note 25). 28 Ehrlich was following Jhering’s ideas that Petrażycki constantly criticized. In particular, Petrażycki criticized Jhering’s idea that interest is the essence of all rights. Petrażycki contended that [l]‌aw, as much as morality, are products of unconscious social adaptation to the good and the flourishing of societies, and to the spiritual-​cultural education of humanity[, a]nd [that], in order to understand the social meaning of … rights, for example, of the right of ownership, of pecuniary rights, of inheritance rights, one should not consider the financial situation of individual owners, creditors, or heirs, but of the national economy and culture. Petrażycki 1909–​10, § 28: 300 Thus, he concluded that “[d]‌espite its extremely ‘practical’ nature, the shallowness of Jhering’s perspective and his school should be replaced by a consideration of the national economy and culture” (Ibid.). According to Edoardo Fittipaldi (personal communication)—​who bases his interpretation also on Jerzy Lande’s writings—​another major difference between the two thinkers is that Petrażycki regarded legal dogmatics as a full-​fledged (practical) science (Petrażycki 1939b[1925–​26]: 111) and in no way believed that his legal theory should replace legal dogmatics, a science that he regarded as highly beneficial to society (cf. Fittipaldi 2016: 500, 503). Furthermore, in regard to Ehrlich’s Grundlegung (1913; 2017[1913]), Lande observes that his “program is replete with misunderstandings as to the conception of living law, a concept initiated by the historical school and reshaped in the sense of the practical strivings of the Free Law School” (Lande 1933[1959]: 678, emphasis added). According to Fittipaldi, this amounts to accusing Ehrlich of conflating the theoretical and practical viewpoints. 29 n his Polish writings he would call these latter classes “ideologic” and distinguish them from “realistic” ones. See Glossary. 30 Arguably, Petrażycki’s methodology can be compared to Karl Popper’s hypothetico-​ deductive model of scientific knowledge—​ a point previously made by Woleński

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(1969: 164). Owing to space limitations, I cannot elaborate on this issue (see Timoshina 2012: 165–​76, see also Fittipaldi 2018). 31 For Petrażycki’s understanding of the terms “theory” and “theoretical,” see note 15 and Glossary. 32 In English, this phrase is variably rendered as “actual experience” (2017[1913]: 355), “direct observation,” (357), etc. 33 This is to say that, for example, it is the subject that constructs her current perception of, say, an apple based on her past and current sensations (cf. Fittipaldi 2012: 12, note 19, and Fittipaldi 2018). (Translator’s note.) 34 By “legal facts,” Petrażycki means legal hypotheses or elements thereof. On legal hypotheses, see Glossary. 35 Petrażycki focuses on mental objects playing the role of subjects in judgments, but there is no reason not to generalize this consideration to all sorts of mental objects. See “object,” “subject2,” and “judgment,” in Glossary. (Translator’s note.) 36 A Petrażyckian example is that of wrongly identifying law with the commands of a ruler. 37 According to Petrazycki, if the existence of the subject of a judgment (or of a mental object in general) can be (wrongly) denied we may confront a third kind of mistake: naive nihilism.This is the case of those who (wrongly) deny Zeus’s existence in the case of the judgment, “Zeus is the king of the Olympic gods,” because Zeus does not exist outside the psyche of the person formulating that judgment. According to Petrażycki, Zeus does exist, but within the psyche of those who formulate judgments about him. 38 According to Fittipaldi (personal communication), Petrażycki’s ethical emotions should also be compared to some of Weber’s “affects” (Affekte) and “feeling states” (Gefühlslagen) (1976[1921–​22]: 12; 1978[1921–​22]: 25). 39 The English translation is not literal and reads: “have a meaning in the minds of individual persons” (1978[1921–​22]: 14). 40 For reasons explained above, Petrażycki uses the term “theoretical,” not “sociological.” 41 I use the term “subjectual” in the phrase “subjectual representation” to refer to a representation having as its object an animate being capable of possessing rights and duties. (Note by the translator; see also “legal subject” in the Glossary.) 42 On this subject, see also Chapter 10 in this volume. 43 In this connection, the term “system” does not refer to a legal-​dogmatic system, but to a purely social phenomenon of behavioral coordination. 44 Weber uses the term Ordnung; a term that presents many difficulties (cf. e.g., Treiber 2017: 12–​3). (Translator’s note.) 45 As pointed out by Talcott Parsons,Weber’s Sinn refers to the “content of subjective states of mind” (1978[1921–​22]: 57), that is, contents of representations. (Translator’s note.) 46 In this connection, it should be recalled that Talcott Parsons, just as Max Weber (who influenced Parsons), emphasized that social theory comprises the study of the “motivational mechanisms of the social system” (1991[1951]: 203, emphasis added). And Parsons did not only use the term system in a macrosociological sense, as was typical of classical sociology, but used it to also refer to any system of interacting individuals, including dyads. 47 On this issue, see also note 38. 48 Teleological motivations—​ also characterized as future-​ concerning motivations—​ are present in actions performed in order to achieve certain future results. Basal motivations—​also characterized as issuing-​from-​the-​past motivations—​are present in

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actions performed because of the representation of past objects that prompt actions without the representation of achieving specific future results (cf. 2000[1909–​10]: 33).

References Albert, Hans, 1965. Wertfreiheit als methodisches Prinzip. Zur Frage der Notwendigkeit einer normatives Sozialwissenschaft. In Hans Albert (ed.), Aufklärung und Steuerung. Aufsätze zur Sozialphilosophie und zur Wissenschaftslehre der Sozialwissenschaften. Hamburg: Hoffmann und Campe. Banakar, Reza, 2009. Law through Sociology’s Looking Glass: Conflict and Competition in Sociological Studies of Law. In Ann Denis and Devorah Kalekin-​Fishman (eds.), The ISA Handbook in Contemporary International Sociology: Conflict, Competition and Cooperation. Thousand Oaks, CA: SAGE Publications. Cotterrell, Roger, 2009. Ehrlich at the Edge of Empire: Centres and Peripheries in Legal Studies. In Marc Hertogh (ed.), Living Law: Reconsidering Eugen Ehrlich. London: Kluwer International. Ehrlich, Eugen, 1907. Die Tatsachen des Gewohnheitsrechts. Inaugurationsrede. Leipzig and Vienna: Deuticke. Ehrlich, Eugen, 1913. Grundlegung der Soziologie des Rechts. Munich and Leipzig: Duncker & Humblot. Ehrlich, Eugen, 1916. Entgegnung. Archiv für Sozialwissenschaft und Sozialpolitik, 41: 844–​9. Ehrlich, Eugen, 2017[1913]. Grundlegung der Soziologie des Rechts. English translation Fundamental Principles of the Sociology of Law. London and New York, NY: Routledge. Fittipaldi, Edoardo, 2012. Everyday Legal Ontology. A Psychological and Linguistic Investigation within the Framework of Leon Petrażycki’s Theory of Law. Milan: Led. Fittipaldi, Edoardo, 2016. Leon Petrażycki’s Theory of Law. In Enrico Pattaro and Corrado Roversi (eds.), Legal Philosophy in the Twentieth Century:The Civil Law World,Tome 2: Main Orientations and Topics. Dordrecht: Springer. Fittipaldi, Edoardo, 2018. On Leon Petrażycki’s Critical Realism and Legal Realism. In Bartosz Brożek, Julia Stanek, and Jerzy Stelmach (eds.), Russian Legal Realism. Springer: Dordrecht. Fittipaldi, Edoardo, and Elena V.Timoshina, 2017.Theory of Custom, Dogmatics of Custom, Policy of Custom: On the Threefold Approach of Polish-​Russian Legal Realism. Ratio Juris, 30, 1: 105–​22. Gorecki, Jan, 1975. Sociology and Jurisprudence of Leon Petrażycki. Urbana; Chicago, IL; and London: University of Illinois Press. Husserl, Edmund, 1965[1911]. Philosophie als strenge Wissenschaft. English translation Philosophy as Rigorous Science in Edmund Husserl. In Quintin Lauer (ed.), Phenomenology and the Crisis of Philosophy. New York, NY: Harper & Row. Husserl, Edmund, 2001a[1913]. Logische Untersuchungen. I, 2nd ed. English translation Logical Investigations.Vol. I. London and New York, NY: Routledge. Husserl, Edmund, 2001b[1913]. Logische Untersuchungen. I. 2nd ed. English translation Logical Investigations.Vol. II. London and New York, NY: Routledge. Kelsen, Hans, 1915. Eine Grundlegung der Rechtssoziologie. Archiv für Sozialwissenschaft und Sozialpolitik, 39: 839–​76. Lande, Jerzy, 1932[1959]. Leon Petrażycki. In Jerzy Lande and Kasimierz Opałek (eds.), Studia z filosofii prawa, 1959. Warsaw: PWN.

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Lande, Jerzy, 1933[1959]. Sprawa teorii prawa. In Jerzy Lande (Kasimierz Opałek ed.), Studia z filosofii prawa, 1959. Warsaw: PWN. Lande, Jerzy, 1975[1958]. Socjologia Petrażyckiego. Abridged English translation The Sociology of Petrażycki. In Jan Gorecki (ed.), Sociology and Jurisprudence of Leon Petrażycki. Urbana: University of Illinois Press. Parsons, Talcott, 1991[1951]. The Social System. London and New York, NY: Routledge. Peczenik, Alexander, 1975. Leon Petrażycki and the Post-​ Realistic Jurisprudence. In Jan Gorecki (ed.), Sociology and Jurisprudence of Leon Petrażycki. Urbana: University of Illinois Press. Petrażycki, Leon, 1897. Modnye lozungi jurisprudencii. In Leon Petrażycki Bona Fides v graždanskom prave. Prava dobrosovestnogo vladel’ca na dohody s toček zrenija dogmy i politiki prava. St. Petersburg: Tipografija M.M. Stasjuleviča. Petrażycki, Leon, 1904. O motivah čelovečeskih postupkov, v osobennosti ob ėtičeskih motivah i ih raznovidnostijah. St. Petersburg: Tipografija Ė. L. Porohovščikovoj. Petrażycki, Leon, 1907. Universitet i nauka. Opyt teorii i tehniki universitetskogo dela i naučnogo samoobrazovanija. Tom 1.Teoretičeskie osnovy. St. Petersburg: Ėrlih. Petrażycki, Leon, 1923. O istocie nauki. In Leon Petrażycki (ed.), Pisma wybrane. Warsaw: PWN. Petrażycki, Leon (Jerzy Finkelkraut ed.), 1939a[1920–​ 23]. Szkice Filozoficzne. O tak zwanej metodzie krytycznej oraz o metafizyce i filozofii praktycznej Kanta. In Andrej Kojder (ed.), O nauce, prawie i moralności. Warsaw: Nakładem Towarzystwa im. Leona Petrażyckiego. Petrażycki, Leon (Jerzy Finkelk raut ed.), 1939b[1925–​26]. Nowe podstawy logiki i klasyfikacja umiejętności. Warsaw: Nakładem Towarzystwa im. Leona Petrażyckiego. Petrażycki, Leon, 2000[1909–​10]. Teorija prava i gosudarstva v svjazi s teoriej nravstvennosti. 2nd ed. St. Petersburg: Lanh. Petrażycki, Leon, 2010[1896–​97].Vvedenie v nauku politiki prava. In Leon Petrażycki (Elena Timoshina ed.), Teorija i politika prava. Izbrannye trudy. St. Petersburg: Universitetskij izdatel’skij consortium. Petrażycki, Leon, 2010[1900–​ 03]. Očerki filosofii prava. In Leon Petrażycki (Elena Timoshina ed.), Teorija i politika prava. Izbrannye trudy. St. Petersburg: Universitetskij izdatel’skij consortium. Petrażycki, Leon, 2010[1908]. Vvedenie v izučenie prava i nravstvennosti. Osnovy ėmocional’noj psihologii. 3rd ed. In Leon Petrażycki (Elena Timoshina ed.), Teorija i politika prava. Izbrannye trudy. St. Petersburg: Universitetskij izdatel’skij consortium. Petrażycki, Leon, 2011[1907]. Vvedenie v izučenie prava i nravstvennosti. Osnovy ėmocional’noj psihologii. 2nd ed. Abridged English translation Introduction to the Study of Law and Morality. In Leon Petrażycki (Nicholas S.Timasheff ed.), Law and Morality: Leon Petrażycki, with a new introduction by A. Javier Treviño. Piscataway, NJ: Transaction Publishers. Petrażycki, Leon, 2011[1909–​ 10]. Teorija prava i gosudarstva v svjazi s teoriej nravstvennosti. 3rd ed. Abridged English translation Introduction to the Study of Law and Morality. In Leon Petrażycki (Nicholas S. Timasheff ed.), Law and Morality: Leon Petrażycki. Piscataway, NJ: Transaction Publishers. Podgórecki, Adam, 1974[1971]. Zarys socjologii prawa, Russian translation Očerk sociologii prava. Aleksandr R. Ratinov (ed.). Moscow: Progress.

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Podgórecki, Adam, 1980–​ 81. Unrecognized Father of Sociology of Law: Leon Petrażycki: Reflections Based on Jan Gorecki’s “Sociology and Jurisprudence of Leon Petrażycki”. Law & Society Review, 15, 1: 183–​202. Russell, Bertrand, 2007[1919]. Introduction to Mathematical Philosophy. Nottingham: Spokesman Books. Schütz, Alfred, 1932. Der sinnhafte Aufbau der sozialen Welt. English translation The Phenomenology of the Social World.Vienna: Julius Springer. Schütz, Alfred, 1960. The Social World and the Theory of Social Action. Social Research, 27, 2: 203–​21. Schütz, Alfred, 1970[1953]. Edmund Husserls “Ideen”, Band II. English translation Edmund Husserl’s Ideas, Volume II. In Alfred Schütz (Ilse Schütz ed.), Collected Papers. III. Studies in Phenomenological Philosophy. The Hague: Martinus Nijhoff. Schütz, Alfred, 1972[1932]. Der sinnhafte Aufbau der sozialen Welt. English translation The Phenomenology of the Social World. Evanston, IL: Northwestern University Press. Timoshina, Elena V., 2012. Kak vosmožna teorija prava? Ėpistemologičeskie osnovanija teorii prava v interpretacii L.I. Petrażyckogo. Moscow: Izdatel’stvo “Jurlitinform”. Treiber, Hubert, 2017. Max Webers Rechtsoziologie—​ eine Einladung zur Lektüre. Wiesbaden: Harrassowitz. Treviño, Javier, 2011. Introduction to Leon Petrażycki Law and Morality. Piscataway, NJ: Transaction Publishers. Walicki, Andrej, 1992[1967]. Legal Philosophies of Russian Liberalism. Notre Dame, IN and London: University of Notre Dame Press. Weber, Max, 1968[1913]. Über einige Kategorien der verstehenden Sociologie. In Max Weber (Johannes Winckelmann ed.), Methodologische Schriften. Fischer: Frankfurt on the Main. Weber, Max, 1968[1917]. Der Sinn der “Wertfreiheit” der soziologischen und ökonomischen Wissenschaften. In Max Weber (Johannes Winckelmann ed.), Methodologische Schriften. Fischer: Frankfurt on the Main. Weber, Max, 1976[1921–​22]. Wirtschaft und Gesellschaft. 5th edition edited by Johannes Winckelmann. Tübingen: Mohr Siebeck. Weber, Max, 1978[1921–​22]. Wirtschaft und Gesellschaft. English translation edited by Guenther Roth and Claus Wittich. Economy and Society. Berkeley, CA: University of California Press. Weber, Max, 2012[1913]. Über einige Kategorien der verstehenden Sociologie. English translation On Some Categories of Interpretive Sociology in Max Weber (Hans Enrik Bruun & Sam Whinster) Collected Methodological Writings. London and New York, NY: Routledge. Weber, Max, 2012[1917]. Der Sinn der “Wertfreiheit” der soziologischen und ökonomischen Wissenschaften. English translation The Meaning of “Value Freedom” in the Sociological and Economic Sciences in Max Weber (Hans Enrik Bruun & Sam Whinster) Collected Methodological Writings. London and New York, NY: Routledge. Woleński, Jan, 1969. Metodologiczne dążenia Petrażyckiego a współczesna teoria nauki. In Kasimierz Opałek (ed.), Z zagadnień teorii prawa i teorii nauki Leona Petrażyckiego; studia opracowane dla upamiętnienia stulecia urodzin. Warsaw: PWN.

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6 LEON PETRAŻYCKI’S RECONSTRUCTION OF NORMATIVE EXPERIENCES1 Lorenzo Passerini Glazel

What Is a Norm? In this chapter, I focus on Leon Petrażycki’s contribution to the conceptualization of norms and normative phenomena. Notably, I address the question, What is a norm in Petrażycki’s theory of law? Despite the fact that we daily act with reference to norms, the question “What is a norm?”—​the basic question of any theory of norms and normative phenomena—​is far from having an obvious and univocal answer. In the social sciences that deal with normative phenomena, like jurisprudence, legal theory, or sociology of law, the concept of norm is either taken for granted and not given any explicit definition, or else is given a plurality of provisional, unsatisfying, and conflicting definitions that either omit phenomena we usually refer to as norms or include phenomena we wouldn’t usually refer to as norms.2 One of the main reasons for bewilderment in this regard is that there is no agreement as to which realm of reality, or domain of phenomena, norms actually belong. Indeed, they appear to be complex phenomena intersecting different domains, notably, the psychical, linguistic, logical, biological, social, legal, and so on. Thus, norms can hardly be reduced to one single domain. The impression may arise, then, that the concept of norm—​diffracting and refracting into heterogeneous, mutually irreducible, and interfering phenomena and conceptualizations—​fades away. Four different approaches can be taken to tackle the problems this concept raises. The first involves dropping it because it is incapable to single out definite phenomena.3 The second approach involves acknowledging the reality of norms in one domain and considering related phenomena in other domains to be subordinate or metonymic to it.The third approach involves acknowledging the reality of norms as a necessary combination of related DOI: 10.4324/9781351036740-9

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phenomena in two or more different domains. Finally, the fourth approach involves mapping the different phenomena to which the term “norm” may variously refer, and then examining their possible relationships.4 I adopt this “mapping” approach and maintain that “norm” may refer to at least six kinds of phenomena5: 1. a deontic sentence, such as, “One ought to pay one’s debts”; 2. a deontic proposition, that is, the meaning of a deontic sentence6; 3. a deontic utterance whose goal is to issue a norm, like a command or the enactment of a law7; 4. a deontic conduct that is taken as a norm to be followed in similar circumstances8; 5. a deontic state-​of-​affairs, such as a prohibition, an obligation, and the like9; 6. a deontic noema, that is, the mental representation of a deontic state-​of-​affairs, or else the mental object of a normative experience, like the content of the state of consciousness to be (usually) found within the mind as in the case of a creditor telling his debtor that one ought to pay one’s own debts (I will return to this concept in the next sections).10 With the help of this conceptual map, I will endeavor to answer the question, What is a norm in Petrażycki’s theory of law?

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Norm-​Creating Acts vs. Normative Experiences Many theories of law, including those that Petrażycki would have dismissed as naive-​realistic, search for the reality of norms in the most “tangible” referents of the word “norm.”11 Thus, they conceptualize norms as linguistic entities, or more specifically as deontic sentences, linguistic acts (i.e., deontic utterances of some normative authority), or as their semantic correlates (i.e., deontic propositions).12 Most of these theories generally focus only on one aspect of normative phenomena: norm-​creating acts.13 They generally disregard other aspects, especially normative experiences. Norms are usually seen as entities produced through acts of will, whereas normative experiences are dismissed as merely internal psychical phenomena, which are incidental or irrelevant as to the social existence of norms.This is mostly the case when it comes to legal norms.14 Many legal theories identify the a priori conditions for the existence of norms within a normative system, regardless of whether a corresponding normative experience is actually “produced” within people’s minds. Identifying the criteria for the validity of norms is a chief task of legal science (especially of legal dogmatics, as suggested by Petrażycki). However, the emphasis on norm-​creating acts and the depiction of norms exclusively as valid statutory norms may lead to a conceptualization of legal norms that excludes other kinds such as customary and spontaneous legal norms.15

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Petrażycki offers a diametrically opposite perspective. He begins with normative experiences and maintains that the reality of norms is found in people’s internal psychical experiences. The actual existence, in the external world, of perceptible phenomena like deontic sentences or utterances is, depending on the context, either incidental or completely irrelevant. This perspective allows Petrażycki to offer two contributions to the conceptualization of norms and normative phenomena: (1) the analysis of ethical—​or normative—​experiences (ètičeskie or normativnye pereživanija)16 and (2) the formulation of the concept of normative fact (normativnyj fakt). I will start with the latter.

Normative Facts If, according to Petrażycki, norms are found only in people’s internal normative psychical experiences, then external phenomena, like deontic sentences (e.g., legislative expressions) and deontic utterances (e.g., legal authorities’ commands and prohibitions), cannot be regarded as norms in Petrażycki’s theory of law. Petrażycki expressly labels as “naive-realistic” the theories that identify legal norms with commands (i.e., a form of deontic utterances—​in my terminology) since they “confuse norms of law with the human conduct termed ‘command’ ” (Petrażycki 2011[1907]: 11). It is noteworthy that he criticizes such theories by pointing to the different temporal dimension of commands and norms, respectively: Commands, prohibitions, and so forth, are actions […] of a particular type: actions of monarchs, of members of the legislature, and so forth. These phenomena pass swiftly and disappear, ceasing to exist the moment the corresponding words are spoken (in the field of oral legislation, oral commands of absolute monarchs, oral enactments of the national assembly, and the like) or the corresponding document signed. On the other hand, norms are regarded [predstavljajutsja, lit. “are represented”] (and are studied by … jurists despite their failure to distinguish between the concept of norms and the concept of commands) as something [čto-​to] existing continuously or over a prolonged period. Petrażycki 2011[1909–​1910]: 155, translation modified17 Petrażycki also expressly rejects the idea that norms should be identified with deontic sentences, like legislative expressions: Modern jurisprudence fails to discriminate between norms [normy] of law on the one hand and legislative expressions [zakonodatel’nye izrečenija] on the other, and so purports to be interpreting norms of law whereas it is actually

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normative facts [normativnye fakty] (including legislative expressions) that are objects of interpretation. Petrażycki 2011[1909–​1910]: 142 As Petrażycki remarks, in statutory positive law various commands, prohibitions, and legislative expressions do in fact exist; but these phenomena are not norms of law, “they are only normative facts” (Petrażycki 2011[1909–​1910]: 155, emphasis added).18 For Petrażycki, normative facts are norm-​creating facts, that is, “facts that create positive norms.” But they do so only in the sense that they produce normative experiences and convictions in human minds, not in the sense that they create some sort of objective entities existing in the external world (see Petrażycki 2011[1909–​1910]: 156).19 Furthermore, and more importantly, Petrażycki proposes an a posteriori conceptualization of normative facts seeing them as normative only “after the fact,” that is, only inasmuch as they actually produce normative experiences in an individual’s mind. To be more precise, a fact is a normative fact, if, and only if, its representation is part of the structure of a normative experience that “comprises” the representation of that fact as its cause and justification. Petrażycki provides the following examples: “[w]‌e must act thus because it is so written in the New Testament, or in the Koran, or in the Code of Laws,” or “because our fathers and grandfathers acted so,” or “because the assembly of the people has so ordained.” Petrażycki 2011[1909–​1910]: 44; see also Fittipaldi, 2016c: 461–​464 As Petrażycki expressly stresses, normative facts are not limited to linguistic phenomena like deontic sentences and deontic utterances.There are also non-​linguistic normative facts that I propose to include among the possible referents of the word norm under the concept of “deontic conduct.” Notably, I am thinking of normative facts like the mass conduct of ancestors that give rise to customary normative experiences (2011[1909–​1910]: 263),20 and of the conduct of persons with religious authority, inasmuch as their conduct “attains the significance of [a]‌normative fac[t] in the sense that it becomes a model of behavior obligatory in similar cases” (284). An example can be found in the Catechism of the Catholic Church, according to which “Jesus is the model for the Beatitudes and the norm of the new law” (§ 1.2.2.3.1.459). In Petrażycki’s a posteriori conceptualization of normative facts, the actual existence in the external world of a deontic sentence, utterance, or conduct, may also fail to produce a corresponding normative experience. In such cases, the external fact is no normative fact at all. Hence, the actual existence of a deontic sentence, utterance, or conduct is not a sufficient condition for the corresponding normative experience to occur in one’s mind.

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On the other hand, for Petrażycki, the actual existence of a deontic sentence, utterance, or conduct is not even a necessary condition for a normative experience to occur in one’s mind, for at least two reasons. First, the actual past or present external existence of a normative fact is not necessary for the existence in one’s mind of a normative experience involving the representation of that normative fact. This is because it suffices that the normative experience comprise the mere belief that the normative fact took place or is taking place (along with the experience of its bindingness).21 In regard to commands and customs, Petrażycki, for instance, remarks that: not only may the supposed commands have no place in reality, but their supposed authors may themselves exist only in legend or myth and the ancestors may have known nothing whatever of the custom ascribed to them or have acted in a completely different manner. Petrażycki 2011[1909–​1910]: 24922 Second, according to Petrażycki, normative experiences may also occur independently of normative facts. In the context of law—​but this holds for all normative phenomena—​Petrażycki distinguishes between positive and intuitive law. Positive law consists of normative experiences that comprise the representations of normative facts (experienced as binding); intuitive law consists, instead, of normative experiences that do not comprise such representations: Legal experiences comprising representations of normative facts we shall call positive legal experiences or positive law; those legal experiences which contain no references to outside authorities and are independent thereof we shall call intuitive legal experiences or intuitive law. Petrażycki 2011[1909–​1910]: 57, translation modified, emphasis added It thus follows that, in Petrażycki’s theory of law, norms cannot be identified with deontic sentences, utterances, or conducts given that these latter are not constitutive elements of a normative experience. This is because they are neither necessary nor sufficient for a normative experience to occur in one’s mind. Deontic sentences, utterances, and conducts are nothing but accidental components of normative experiences.

Deontic Propositions If norms cannot be identified with external phenomena, can they be identified with deontic propositions, that is, with the meanings of deontic sentences? It is important to consider this hypothesis23 that gives rise to three interpretations. As I will show, however, the hypothesis must be rejected in each of these interpretations.

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The first interpretation treats deontic propositions concretely, that is, as the meanings of existing deontic sentences intended to “issue” a norm. The meaning may be “inscribed” in the sentence by the author or “ascribed” to it by an interpreter. This hypothesis must be rejected because, as we have seen, in intuitive law, legal experiences may occur independently of the existence of any actual deontic sentence, and, consequently, of any corresponding deontic proposition.24 Even in positive law, norms cannot be identified with deontic propositions because Petrażycki rejects the idea that legal interpretation is merely “the elucidation of the thought [mysl’] expressed in a legislative sentence [sakonodatel’noe izrečenie].” He remarks that from a single normative fact, such as a legislative sentence, “a multitude of different legal norms [normy] can be deduced” (Petrażycki 2011[1909–​ 1910]: 142–​143, emphasis added). For example, from the sentence providing a certain penalty for a certain crime “sundry binding norms and obligations are deduced, for criminals as well as for the administration, the police, examining magistrates, state attorneys, and so forth” (Petrażycki 2011[1909–​1910]: 156).25 The second interpretation considers deontic propositions abstractly, that is, as the meanings of possible, or virtual, deontic sentences expressing a norm. But not even in this case can, Petrażycki’s norms cannot be identified with deontic propositions. A subject26 may think of an abstract deontic proposition, such as, for instance, the meaning of “All people ought to go to the Moon” without having a corresponding normative psychical experience. Such an interpretation regards norms as unrelated to normative experiences. This is hardly compatible with the main tenets of Petrażycki’s psychological theory of law. The third interpretation again treats deontic propositions concretely, although not as the meanings of deontic sentences intended to issue a norm, but as the meanings of deontic sentences used to express one’s own normative experiences. However, just as the meaning of the statement, “An apple is on the table” is not a real apple on a real table,27 and the meaning of the sentence “I am hungry” uttered by a person to express their hunger is not their actual (psycho-​physiological experience of) hunger, the meaning of a deontic sentence used to express one’s normative experience is not an actual normative experience. Further, one can have both a hunger experience and a normative one (i.e., a normative appulsion or repulsion) without expressing them verbally, and, if there is no linguistic expression, there is also no meaning (or deontic proposition).28

Normative Experiences and Deontic Noemata Thus far, I have ruled out the idea that, in Petrażycki’s theory of law, norms can be identified with deontic sentences, utterances, conducts, and propositions. I now examine normative experiences and investigate whether through them we can trace Petrażycki’s concept of norm. As we have seen, one of the main tenets of Petrażycki’s psychological theory of law is that jural29 phenomena are to be found exclusively in the psychical sphere.

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They are nothing but psychical processes or states (see Petrażycki 2011[1909–​ 1910]: 6 ff.), consisting of “immediate combination[s]‌of emotional and cognitive processes” (ibid.: 43, translation modified).30 When an individual sees (as, according to Petrażycki, legal scientists often do) jural phenomena in the world external to himself—​when one believes, for instance, in the objective existence of obligations or norms—​he is subject to “an optical illusion,” a misunderstanding caused by the fact that something that exists only within his consciousness is psychically projected outside it (see Petrażycki 2011[1909–​1910]: 8, 40–​45). In this way, “emotional, or impulsive phantasmata” are called into being, along with the illusion that jural phenomena exist outside the person experiencing them. Petrażycki writes: Moral and legal [or jural] norms [normy] and obligations represent nothing actually and objectively outside the minds of the individuals asserting or denying their existence, and apart from those individuals. They are merely reflections or projections of the psychic states of those individuals. Petrażycki 2011[1909–​1910]: 112, emphasis added Petrażycki explains this claim as follows: Only ethical impulsions—​in association with the representation of certain conducts (such as lying) and certain other representations (of subjects with whose conduct we are concerned and so forth)—[do] really and truly exist; but the impulsive projection makes it seem to one experiencing such processes that somewhere—​in a higher space, as it were, above mankind—​a corresponding categorical and strict imperative or prohibition exists and holds sway (for example, a prohibition against lying), and those to whom such commands and prohibitions seem addressed are in a peculiar condition of being bound or obligated. Petrażycki 2011[1909–​1910]: 42 From this projective perspective, norms are phantasmatic phenomena to which no actual counterpart in the external world corresponds. On Petrażycki’s analysis, normative experiences are combinations of cognitive constituents (representations of actions) and emotional constituents (appulsions or repulsions toward actions), and these combinations result in norms believed to exist in external reality. What is real are those combinations—​whereas the norms projected onto external reality are mere emotional phantasmata. A norm—​understood as the psychical result of a process of projection—​is like other illusions such as mirages. It is a mere mental object, a mere noema, that is produced by and within the consciousness of a person having a certain kind of psychical experience—​in the case of norms, a normative experience. In the “mapping” approach introduced in the “What Is a Norm?” section, a norm, in

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Petrażycki’s theory of law, is what I call a “deontic noema,” that is, a mental object resulting from a normative experience, or “deontic noesis.”31

Are Projective Illusions Unavoidable? A question arises at this point: Are—​in the domain of normativity—​projective illusions unavoidable, or is it possible, instead, to have a normative experience while being aware of its psychical nature, and without projecting it onto the external world? For example, following Petrażycki, I may experience a normative repulsion toward lying, and do so without thinking that a norm prohibiting lying exists outside my own consciousness.32 This is implied in the following passage: Whether jural experiences are or are not accompanied by projections onto the outside of corresponding norms and by the ascription of obligations to some subjects and of rights to others, it is at all events specifically these experiences—​ combinations of imperative-​attributive emotions with the cognitive elements indicated supra—​and not the norms (appearing to the subject to be found somewhere in the higher spheres) that are here the real phenomena. Petrażycki 2011[1909–​1910]: 61–​62, emphasis added, translation modified Even if this passage seems to indicate that non-​projective normative experiences have no norms (or noemata—​to be precise) at all,33 this would be inconsistent with other passages by Petrażycki, like that concerning the treasury as a “perfectly real right-​holder” within the consciousness of a person who experiences the judgment34 that the treasury has the right to demand that duty-​holders endure its dealings with the treasury’s properties and abstain from taking them, stealing them, etc.: There is a perfectly real right-​holder: that which the person thinking of “the treasury” represents to himself. There is a duty-​holder [in the singular]: “all,” “everyone,” etc., that is, that which is represented [predstavjaemoe] and expressed by the pronouns “all,” “everyone,” etc. There is a single subject [in the sense of subject within a judgment having a subject and a predicate], found in the consciousness of the person experiencing the legal judgment—​ not a multitude of subjects, dispersed over the whole earth. Petrażycki 2011[1907]: 11–​12, translation modified The treasury, like all right-​and duty-​holders, is conceptualized first and foremost not as an entity existing somewhere in space, but as a mental object capable

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of playing the role of logical (or grammatical) subject within normative judgments (or statements, respectively).35 As such, this mental object exists within the judgment as its subject.To use my terminology, it exists as a noema within the consciousness of those who experience that judgment (see Petrażycki 2011[1907]: 9). This noema is part of the more complex noema that consists of the entire content of the judgment. The aforementioned passage may be compared with another in which Petrażycki recapitulates his notion of normative experience and its relationship with normative judgments, normative convictions, and their contents: norms: The existence and operation, in our mind, of immediate combinations of action representations and emotions rejecting or encouraging a corresponding conduct (that is repulsive and appulsive emotions) may be manifested in the form of judgments [suždenija] rejecting or encouraging a certain conduct per se (and not as a means to a certain end), such as for instance: “A lie is shameful,” “One should not lie,” “One should speak the truth,” and so forth. Judgments made up of such combinations of action representations with repulsions or attractions I will term “practical judgments of principle [principial’nye praktičeskie sužudenija],” or … “normative judgments [normativnye suždenija]”; the content [soderžanie] of such judgments I will term “principled rules of conduct, [principial’nye pravily povedenija],” “principles of conduct, [principy povedenija],” or “norms [normy].” The corresponding dispositions [dispozicii] I will term “principled practical convictions” or “normative convictions [normativnye ubeždenija].” Petrażycki 2011[1909–​1910]: 30, translation modified36 Here, Petrażycki defines norms as the contents of normative judgments, not as phantasmatic entities projected onto external reality. Arguably, if the subjects of normative judgments are real—​provided that they are seen as mental objects within the minds of those who produce the judgments containing them—​then, one may ask why the whole content of such judgments should not also be regarded as real.37 By “real” I mean here that both normative judgments, or deontic noeses, and their contents, or deontic noemata, exist within the minds of those who produce them.38 Moreover, it can be argued that normative experiences, judgments, and convictions, necessarily involve a deontic noema. Phenomenologists claim that consciousness is always consciousness of something—​in the sense that every conscious act is directed toward an intentional (i.e., mental) object. If this notion is correct, it implies that a normative experience must also be directed toward an intentional object, namely, its deontic noema.To this argument the following considerations could be added. To begin with, according to Petrażycki, the emotional constituent—​the encouraging or rejecting emotion—​is not itself sufficient to give rise to a normative

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experience. Normative emotions “would produce no conduct of any sort in the absence of representations of actions”: “[d]‌issociated from action representations of every sort, they would manifestly not be experienced” (Petrażycki 2011[1909–​ 1910]: 44, translation modified). The content of a normative experience as a whole is thus given by its cognitive constituent along with a normative appulsion or repulsion. In its simplest form, it includes normative appulsions and repulsions plus the representation (or perception) of some internal or external behavior.39 However, more articulated normative experiences may include further cognitive constituents, such as the representation of normative addressees, normative hypotheses, and normative facts (see Petrażycki 2011[1909–​1910]: 44, and Glossary). Additionally, these cognitive constituents may be parts of a deontic noema. What Petrażycki suggests is that a normative experience (or normative Erlebnis—​to use an expression from German phenomenology) is a complex experience in which an emotional constituent and at least one cognitive constituent are inextricably intertwined. This is why I propose to map Petrażycki’s concept of norm onto the concept of deontic noema—​ independently of its being projected onto external reality. To keep things simple, let us think of minimal deontic noeses. On the one hand, they comprise the activity of representing to oneself an action and the experience of a normative appulsion or repulsion toward it. On the other hand, this noesis has its noematic counterpart that comprises the action, as an object of representation, along with an appulsion or repulsion toward it, which is also inextricably intertwined with such a representation.40 Thus, in deontic noemata, the whole object of a deontic noesis is an action connected to an appulsion or repulsion toward it. For example, within my normative experience against lying, the deontic noema is not simply my representation of lying, but rather my representation of lying-​as-​something-​I-​reject. Arguably, deontic noemata—​understood as objectual correlates of normative experiences, or deontic noeses41—​are real within an individual’s mind and do not necessarily involve projections.

Cognizing Other’s Deontic Noemata and Absolute Legal Idiotism There remains one point in Petrażycki’s conceptualization of norms that requires clarification. We begin by raising these questions: If norms are deontic noemata—​ the correlates of deontic noeses (or normative experiences)—, are they thinkable without the actual involvement of corresponding normative-​ emotional experiences? In other words, is it possible to have a non-​participant experience (or a nicht-​teilnehmende Erfahrung, to use Weinberger’s [1970] German) of a norm, i.e., a non-​deontic noesis of a deontic noema? More generally, can a norm be an object of thought without being the object of a truly deontic noesis?42

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According to Petrażycki, Self can acquire “information (indirect and more or less hypothetical, however)” about normative phenomena in the mind of Other through “inference by analogy.” But this is possible only if Self is already acquainted with normative phenomena due to having experienced them. If this is not the case, we may face what Petrażycki calls “absolute legal idiotism,” i.e., “the impossibility of having legal experiences.” Someone with absolute legal idiotism “could not possibly know what law is” (Petrażycki 2011[1909–​1910]: 15).43 This latter remark allows for two interpretations. The first, less plausible, interpretation asserts that in no way can Self think of a norm (or deontic noema) experienced by Other without having a participant, or empathic normative experience of it. That is, he must have a deontic noesis of that specific deontic noema. On this interpretation, no norm (no deontic noema) is thinkable without its corresponding normative experience (deontic noesis). But this implies that when one is protesting a norm, he must at the same time normatively experience that norm, despite experiencing a repulsion toward it. For example, a person who protests a racial norm because of his or her normative repulsion toward racial discrimination should also experience a normative appulsion toward that norm, because thinking about it would necessarily involve an appulsion toward it. The second interpretation contends that in order to understand Other’s deontic noemata, it suffices that Self be generally acquainted with normative experiences, whatever their content—​just as having previously experienced hunger can suffice to understand Other’s appulsion toward eating a certain food, including one that Self dislikes. This second interpretation implies that it is possible to have a non-​ normative experience of a norm, that is, a non-​deontic noesis of a deontic noema. In general, Petrażycki’s failure to consider these issues could be overcome by distinguishing between the cognitive noesis and the deontic noesis of a deontic noema. Such a distinction was foreshadowed by the Czech legal philosopher Ota Weinberger, to whom I now turn.

Deontic Noesis vs. Cognitive Noesis of a Deontic Noema According to Ota Weinberger (1970, 1986), a norm is an ideal entity (ideelle Entität).44 Notably, a norm is a thought “in an objective sense, derived by abstraction from the processes of consciousness (whose contents can be thoughts in the objective sense)” (Weinberger 1986: 33; cf. 1970: 205).45 Thus, Weinberger’s “norm thoughts” are pure deontic noemata divorced from any corresponding actual experience (Erlebnis) or noesis taking place within one’s consciousness.46 However, besides this “idealistic” conceptualization of norms,Weinberger remarks that a correct grasp of their ideal nature is connected to, and elucidated by, the way they operate in human life and action (see Weinberger 1970: 207). Accordingly, he investigates in what ways norms “live” (leben) within the “realm of human consciousness” (Weinberger 1986: 40; 1970: 210–​211).

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According to Weinberger, there are two ways a norm can be a content of consciousness (Inhalt des Bewußtseins). First, it can be an “ought-​knowledge [Soll-​Wissen],” that is, the mere knowledge that an ought “holds good for some human group, in which case it may be that the subject of the ‘ought-​knowledge’ does not ‘will’ the ‘ought’ [das Gesollte]” (Weinberger 1986: 40; 1970: 210–​211).47 Second, it can be an “ought-​experience [Soll-​Erlebnis],” that is, the experience of an ought understood as an “experience of obligatoriness,” or “consciousness that something ought to be the case.” According to Weinberger, this ought-​experience involves the will of the object of the ought (das Wollen des Gesollten).This is the case, for instance, of “custom, law, or other normative systems” that are “experienced (willed) as obligatory [als gesollt erlebt (gewollt)] by the supporters [Träger] of these systems (not only by the norm issuing organs)” (Weinberger 1970: 210–​211; 1986: 40, translation modified). If we understand Weinberger’s norm thoughts as deontic noemata, then what he suggests is that a deontic noema can be the correlate of two different kinds of noeses: a cognitive noesis (Weinberger’s Soll-​Wissen48) and a genuine deontic noesis (Weinberger’s Soll-​Erlebnis49). From this perspective, Self may have the cognition (i.e., a non-​deontic noesis) of a norm experienced by Other even if Self does not share the normative experience (the deontic noesis) of that norm. However, even if one accepts that a deontic noema can be the object of a cognitive as well as a deontic noesis, Petrażycki’s hypothesis of absolute ethical idiotism suggests that no cognitive noesis of a deontic noema is possible without the general capacity to have normative experiences, that is, deontic noeses of deontic noemata.

Conclusion To recapitulate, after stressing that Petrażycki focuses on normative experience rather than on norm-​issuing acts, I argued that in his theory of law, norms are neither deontic sentences, utterances, conducts, nor propositions. They should be understood as deontic noemata, that is, as the objectual50 correlates of normative experiences (or deontic noeses). Then, I argued that, to account for the cognizability of norms experienced by somebody other than their experiencer, it is necessary to distinguish between deontic and cognitive noeses of a deontic noema. However, Petrażycki’s analysis of normative experience suggests that: 1. non-​deontic noeses of deontic noemata are not possible without the general capacity of experiencing deontic noeses along with their deontic noemata51; 2. normative experiences of noemata are possible independent of other linguistic referents of the word norm.52 This highlights Petrażycki’s contribution to a general theory of normative phenomena; a theory that should not disregard the analysis of normative experience, since this latter, if not a necessary condition, is at least a necessary pre-condition for the existence of normative phenomena.53

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Notes 1 I thank Edoardo Fittipaldi for the discussions we had on Petrażycki’s contribution to the conceptualization of norms. I am also grateful to him for providing me with translations from Petrażycki’s works unavailable in Western-​ European languages. Throughout this chapter, when a translation from Russian is modified, this is as a result of Edoardo Fittipaldi checking the original text for accuracy. 2 In Petrażycki’s terms, we often encounter “limping” or “jumping” theories of norms (see Petrażycki 2011[1907]: 19–​20 ff.). On the concepts of a limping and jumping theory, see “adequate theory” in the Glossary. 3 Jaap Hage suggests that we “ban the term norm from theories about normative systems and practical reasoning” (2005: 202). According to Enrico Pattaro, “the possibility of expunging the concept of norm from philosophy of law, and from language in general,” was envisaged by Amedeo G. Conte (1995[1970]), who distinguished four concepts of norm, which he later developed into a “pentad of referents of the word norm” (see Pattaro 1976[1972]: 485; Conte 2006, 2007, 2012, 2017). In my opinion, Conte’s analysis is not aimed at expunging the concept of norm from philosophy of law. His intent is rather to refine and clarify our conceptual framework to better understand normative phenomena—​even if they turn out to be “illusory phosphenes,” as Conte suggests, or “optical illusions,” as Petrażycki contended (see Conte 2017: 24; Petrażycki 2011[1907]: 8). Conte’s pentad of referents is an example of the fourth approach I delineate below. 4 As stated in note 3, an example of this approach is found in Amedeo G. Conte. Earlier examples can be found in Herbert Spiegelberg (1935), who identified sixteen meanings (Bedeutungsmöglichkeiten) for the German word “Norm,” as well as in Georg Henrik von Wright’s Norm and Action. A Logical Inquiry (1963: Chapter 1). In a similar vein, Adolf Reinach (2012[1913]) listed five different elements of enactment (Bestimmung). On this subject, see also Di Lucia and Passerini Glazel’s (2017). 5 This distinction of six referents for the word “norm” is a development of Conte’s pentad of five referents (see, note 3), to which I add deontic conducts. As suggested by Paolo Di Lucia in a personal conversation, the notion of a “deontic object” should also be considered. But this lies outside the scope of this chapter. 6 By “proposition,” I refer to the meaning of a sentence, including prescriptive sentences. I do not narrow the notion of proposition to the meaning of descriptive sentences (i.e., sentences capable of being true or false). On the contrary, to refer to the “prescriptive counterpart of a proposition” Alchourrón and Bulygin prefer to speak of “norm-​ lektón” (2015a[1973–​1989]: 91; see also 1993 and 2015b[1981]). 7 By “utterance” I mean the act of uttering a sentence—​not the uttered sentence. 8 Examples of deontic conducts can be found in religious contexts, where the exemplary conduct of some religious authority is taken as a norm to be followed, and in the context of customary law, where this role is played by the mass conduct of others (be they ancestors or contemporaries) (see the “Normative Facts” section, and Petrażycki 2011[1909–​1910]: 263–​264, 284). 9 I use “deontic state-​of-​affairs,” introduced by Conte (1995[1970]), to refer to the deontic counterpart of the notion of “ontic state-​of-​affairs” (or, simply, “fact”). Just as a descriptive proposition may refer to an ontic state-​of-​affairs, a deontic proposition may refer to a deontic state-​of-​affairs (see also Conte 2006, 2017). An example of a deontic state-​of-​affairs is the ban on smoking in enclosed workplaces in force in the United Kingdom since 2007. In this chapter, I focus on the conceptualization of norms in Petrażycki’s theory of law (i.e., in his empirical science of law), thus I will not delve into

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whether the concept of deontic state-​of-​affairs can be used to understand norms from the perspective of legal dogmatics (on Petrażycki’s understanding of this concept, see Glossary and Fittipaldi 2016c: 498 ff.)—​as Jerzy Lande seems to suggest (see Fittipaldi 2016b). I confine myself to the following remark: If, from a legal-​theoretical perspective, a deontic state-​of-​affairs is seen as a (socio-​)psychological fact (e.g., the fact that in the United Kingdom there exists a widely shared normative conviction that one should not smoke in enclosed workplaces), from a legal-​dogmatic perspective, it could be understood as the “existence” of a norm within a given legal-​dogmatic system (e.g., the “fact” that in the United Kingdom the smoking ban is “technically” or “juristically” in force—​regardless of popular support or compliance). 10 The notion of “deontic noema” was introduced by Conte (2006, 2017). As used here, a deontic noema is a type of intentional (or mental) object. From a phenomenological perspective, intentionality is the property of consciousness of always being directed to an object. On this account, consciousness is always the consciousness of something. By deontic noema, I mean a norm as the correlate of an intentional act regardless of the existence of any external counterpart to it. An example can be found in Art. 1, Paragraph 2, of the Swiss Civil Code that states that, in the event of legal gaps, a court is to decide in accordance with customary law and, in its absence, in accordance with the rule it would make as legislator. Such a rule is not (yet) an existing norm, it is a mere deontic noema (cf. Conte 2017). 11 On Petrażycki’s usage of the term “naive-realistic,” Petrażycki would have spoken of “naive realism.” See Chapter 5, in this volume. 12 While considering norms as deontic sentences is naive, this is not the case with theories that see them as meanings of legislative expressions, and so conceptualize them as deontic propositions (see, for instance, Guastini 1989, 1992, and 1998). Carlos E. Alchourrón and Eugenio Bulygin called “hyletic conceptions of norms” the conceptions that identify norms with deontic propositions, or “norm-​lektá”—​as they call them. What Alchourrón and Bulygin call instead “expressive conception[s]‌of norms” are conceptions identifying norms with (performative) deontic utterances (see Alchourrón and Bulygin 1993, 2015a[1973–​1989], and 2015b[1981]). These kinds of theories are based on the “untranscendability of language” with reference to norms, that is, on the assumption that norms are either linguistic or language-​related phenomena that can be conceived of only in linguistic terms (see Conte 1997[1962]). 13 As a consequence, they can hardly give an account of non-​statutory norms, such as those of customary law. 14 Such theories generally adopt Kant’s distinction between morality (moralitas, Moralität, or Sittlichkeit) and legality (legalitas, Legalität, or Gesetzmäßigkeit).While morality consists in the “conformity [with law] wherein the idea of duty arising from the law is also the motive of the action,” legality consists in the “mere conformity or non-​conformity of an action with law, irrespective of its motive” (Kant 1991[1798]: Introduction, § III, 46, translation modified). 15 On spontaneous legal norms see, for instance, Ago (1950). 16 I depart from Petrażycki’s conceptualization of ethical experiences as a subclass of the general class of normative experiences, which he saw as including both ethical and aesthetic experiences (see the entry “normative experience” in Glossary). I will use the terms “normative” and “ethical” only when strictly necessary. I do this to avoid misunderstandings, given that, while Petrażycki uses “ethical” as a general term for both “legal” and “moral,” most scholars understand it as “moral.” Incidentally, it should be observed that the inclusion of aesthetic experiences among normative experiences

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provides a possible argument against the assumption of the untranscendability of language in normative phenomena, since aesthetic canons are usually experienced by artists and public before they find an explicit linguistic formulation in critique or manifestos (see note 12). 17 This argument may seem incompatible with the main tenets of Petrażycki’s psychological theory of law. On this subject, see Fittipaldi 2017 (cf. also 2012: 82). It could be argued that Petrażycki is here leveling an internal critique at the legal-​dogmatic perspective. This is suggested by the fact that his argument is preceded by the following passage: “Jurists could be readily convinced that [normative] facts … and norms … are completely heterogeneous … [i]‌f they only turn[ed] their attention to the point that [then, see quotation in text]” (2011[1909–​1910]: 155). Further support for this argument is found in the second parenthesis in the quotation. 18 Petrażycki does not contrast normative facts with normative acts, as do many legal theorists. Further, he abstains from stressing a specific normative intentionality, or the formal character of normative acts as distinguished from the unformal character of normative facts. For him, normative acts (like commands) are merely a specific kind of normative fact and, consequently, are normative only a posteriori—​as I argue below. To use Austin’s (1962) terminology, in Petrażycki’s theory of law only the perlocutionary, not the illocutionary, effects of normative acts are relevant. 19 Petrażycki remarks that, along with norm-​creating normative facts, there may be norm-​ annihilating facts that “eradicate norms from the minds of the persons concerned (annihilate the corresponding legal experiences)” and norm-​modifying facts that destroy and create norms at the same time (cf. Petrażycki 2011[1909–​1910]: 156–​157). 20 By “customary normative experience,” Petrażycki means a normative experience whose cause and justification is the representation of people acting in a certain way (cf. Fittipaldi 2016c: 487). On Petrażycki’s contribution to the conceptualization of customary legal phenomena, see Fittipaldi and Timoshina (2017). Another kind of deontic conduct to be considered in this context are “nomotrophic behaviors” that are reactions to the violation of a postulated norm aimed at countering its possible atrophy and obsolescence (see Passerini Glazel 2013, 2015, 2020). 21 Petrażycki distinguished between fantastic and realistic representations (see Glossary). Realistic representations involve belief in the past or current existence of their object. As such, we may say that a necessary condition for a fact to be experienced as a normative fact is its being the object of a realistic representation (see Fittipaldi 2016c: 458). 22 More generally, Petrażycki maintains that “what is significant in positive law, as the bases of obligations and determinants of conduct, is not the corresponding objective events (commands of legislators and so forth) but the representations of them as present or past events” (Petrażycki 2011[1909–​1910]: 248, translation modified). 23 This hypothesis can be compared to Alchourrón and Bulygin’s “hyletic conception of norms” (see note 12). 24 Further, even on ascribing a meaning to an existing legislative sentence, one’s knowledge of that meaning does not necessarily imply that he or she is having a corresponding normative experience. For example, one may ascribe a meaning to “You shall kindle no fire throughout your houses upon the sabbath day” (Exodus 35: 3) without any attendant normative experience. 25 See also Fittipaldi (2016c: 463). It should be also borne in mind that, according to Petrażycki, from the very same legislative sentence even mutually contradictory norms can be derived (cf. Fittipaldi 2016c: 503).

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26 See “subject1,” in the Glossary. 27 Otherwise, lies would be meaningless. 28 This counterargument is strengthened by the consideration that Petrażycki adopts a psychological rather than a logic or linguistic conception of judgments.The content of a judgment is a psychological content, not a proposition in its logical or linguistic sense (on Petrażycki’s concept of judgment, see Glossary). On this issue, see also Fittipaldi (2012: 108 ff.). Furthermore, Fittipaldi (n.d.) remarks that Petrażycki (1939[1925–​ 1926]) maintained that not all thinking is structured in the form of judgments (i.e., psychical connections or disconnections of predicates to or from given subjects) and that judgments emerged as a consequence of the emergence of language. According to this, we mostly think in the form of “positions” (see the “Are Projective Illusions Unavoidable?” section and Glossary). 29 I follow Fittipaldi in using “jural,” rather than “legal,” as adjective of “law” in Petrażycki’s sense (cf. Fittipaldi, n.d.). 30 This is the perspective of Petrażycki’s theory of law. As Fittipaldi (2015) recalls, aside from the theory of law, Petrażycki mentioned four other sciences concerned with law: descriptive legal science, history of law, policy of law, and legal dogmatics, to which, based on Petrażycki posthumous Nowe podstawy (1939[1925–​1926]: 110), a fifth science is to be added, namely, legal prognoses (personal communication from Fittipaldi). Thus, all in all, Petrażycki devised six different approaches to jural phenomena. On these subjects, see also Chapter 5, in this volume. 31 As stated in note 10, I adopt Conte’s concept of deontic noema (2006, 2017). Conte does not expressly analyze normative experiences. He only defines deontic noemata as “the objective aspect of a deontic noesis” (2017: 27, fn. 12). The two correlate notions of noema and noesis have been introduced by Edmund Husserl (1983[1913]: Part 3, Chapter 3, 211 ff.). There is a long-​standing debate on how these two notions are to be understood. Nonetheless, they can be hermeneutically fruitful for the analysis of norms as correlates of actual normative experiences and for interpreting Petrażycki’s analysis of normative experiences. Further, Mohanty (2009) suggests that the concept of noema can also be understood psychologically—​and thus, in my opinion, in a way that is compatible with Petrażycki’s psychological theory of law. Petrażycki might have been familiar with some of Husserl’s works, and a phenomenological cross-​fertilization of Petrażycki’s theory of law with phenomenology could prove fruitful, as Timoshina (2012, 2016) suggests. 32 A comparison may clarify this point: just as the movie photograms projected onto a screen (and resulting in projected images) exist and can be observed on the (negative) film in a non-​projective form, so also might norms manifest themselves in our consciousness in a non-​projective form, that is, without the conviction that they exist outside of us. 33 As Timoshina (2016) recalls, the claim that “we can think of law without the existence of legal norms” is expressly made by Petrażycki’s student, Max Lazerson (1930: 129, as quoted in Timoshina 2016). 34 On Petrażycki’s concept of judgment, see Glossary. 35 On the reason of this approach, see entry “Legal subject” in the Glossary. 36 While the normative judgments “One should not lie” and “One should speak the truth” do not seem to necessarily involve projections—​at least inasmuch as they are not used to express a norm believed to exist somewhere outside the subject who expresses them (but see Fittipaldi 2012: 48)—​the normative judgment “Lying is shameful” involves a projection, as it ascribes to lying the property of being shameful. But, if

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one is aware that the experience of something as shameful only takes place within his own mind, this can merely be a metonymic way of expressing one’s own normative experience. 37 In other words, if in Petrażycki’s “tolerant ontology” (see Chapter 5) mental objects are real as far as they are present in one’s consciousness, why should the connection (or disconnection) of two objects—​one as subject, the other as predicate—​not be also taken as real in the same sense? 38 On Petrażycki’s usage of real’nyj, see Fittipaldi (2016a: 306, fn. 30). 39 Cf. Petrażycki (2011[1909–​1910]: 44). The representation of an internal or external behavior (e.g., the representation of the action of lying) to which the repulsion or appulsion is directed is not per se a deontic noema; it is only a part of a deontic noema as a whole—​and it could be a part also of many other different noemata and psychical experiences, like the plan and the activity of planning to lie. Petrażycki speaks of object representations to refer to behaviors that are the object of obligations or prohibitions, that is, what normative appulsions or repulsions are directed to. Such objects should not be confused with norms that are the objects, or contents, of normative experiences as a whole. 40 It could be said that appulsions and repulsions cannot be the objects of representations. In this case, we could adapt Weber’s (1976[1921–​1922]: 542) terminology and speak of re-​experience, Nacherlebbarkeit (lit. “reliveability”). Cf. also the English translation (Weber 1978[1921–​1922]: 5). On Petrażycki and Weber, see Chapter 5, in this volume. 41 They are “objectual” in the sense that they are what a deontic noesis is about. 42 For a parallel analysis of the problem of the intersubjective sharing of norms in Petrażycki’s psychological theory of law, see, Chapter 9, in this volume, where Polyakov proposes a communicative approach to Petrażycki’s theory, inspired, among others, by the phenomenological sociology of Alfred Schütz. (On Schütz and Petrażycki, see also Chapter 5.) 43 Petrażycki also speaks of ethical idiotism, thus, going forward, I will refer generally to normative idiotism (cf., note 16). 44 In the German original, Weinberger switches between ideelle Entität and ideale Entität, in the same passage (Weinberger 1970: 208–​209). Hans Kelsen more consistently uses ideell in the (ontological) sense of “spiritual, belonging to the realm of ideas and thoughts, non-​material” and ideal in the (axiological) sense of “corresponding to an ideal” (see Kelsen 1991[1979]: 291). The Polish idealny was already used with regard to norms by Jerzy Lande, who wrote: It is necessary to distinguish a jural norm [norma prawna] (an ideal entity [twór idealny]) from its real [realny] counterparts: 1. a human experience having a norm as its content [przeżycie ludzkie, mające za treść normę], 2. mass human behavior governed by a norm. Lande 1959[1929–​1930]: 414–​415, quoted in Fittipaldi n.d. This passage further supports my reconstruction of Petrażycki’s norms in terms of deontic noemata. As for the German ideell, Petrażycki used it to characterize juristic and natural persons as (ideal) “stations of goods” (cf. Fittipaldi 2016c: 467. fn. 66). 45 Even though Weinberger’s ideas can be used to complete Petrażycki’s conceptualization of norms, I am not implying that Petrażycki would have accepted the former’s idea of “thoughts in an objective sense.”

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46 Weinberger draws inspiration from Edmund Husserl’s phenomenology (see Weinberger 1970: 205; 1986: 33). Interestingly, also Paul Amselek sees rules as mental objects (and, specifically, as mental tools) by partly drawing inspiration from Husserl’s phenomenology (see Amselek 1993, 2017). 47 It is unclear, from this definition, whether the knowledge that an ought “holds good for some human group” has to be understood as an empirical knowledge on the human group’s normative convictions, or as a dogmatic knowledge depending on the assumption of a basic norm—​to use Hans Kelsen’s concepts. Perhaps the notion of Soll-​Wissen is compatible with both perspectives. 48 A Soll-​Wissen can be a component of one’s non-​ participant experience (nicht-​ teilnehmende Erfahrung), without its object ever being (for him) also the object of a participant deontic experience (teilnehmendes Soll-​Erlebnis). The distinction proposed here between a participant and a non-​participant experience of norms is inspired by Bronisław Malinowski’s notion of “participant observation” as distinguished from a “non-​participant observation.” The English term “experience” renders here two German terms: Erlebnis and Erfahrung. While Erlebnis—​just as Petrażycki’s pereživanie—​ contains a root meaning “to live,” Erfahrung has a more cognitive nuance (the German verb erfahren also means “to come to know”). 49 Unlike Petrażycki (cf. Fittipaldi 2016a: 304), Weinberger understands deontic noeses, or Soll-​Erlebnisse, in terms of will (das Wollen des Gesollten), since in the case of Weinberger’s Soll-​Erlebnisse the norms of a normative systems are “experienced as obligatory (as willed so)”: “als gesollt erlebt (gewollt).” Unfortunately, he does not clarify what he means by “Wollen eines Gesollten” (lit. “willing of an ought”)—​a phrase that in English was rendered with “issuing of an ‘ought’ ” (Weinberger 1986: 40). However, this “willing” cannot be identified with the will involved in a norm-​positing act, since he writes: When I speak of the being or real existence of a norm, I am not concerned with the act through which the norm is posited, nor with the existence of an utterance which expresses the norm, nor with the knowledge and conduct of the people who more or less guide their behavior according to the norm. The act of positing a norm, the relevant volition which establishes an “ought”, is, of course, a fact; […] but it is not identical with the established norm itself. Weinberger 1970: 210; 1986: 39 Weinberger adds that it is a mistake to regard norms either as acts of will or as the contents of such acts (1970: 205; 1986: 33). His argument for distinguishing between norms and the norm-​positing acts is similar to Petrażycki’s argument presented in the “Normative Facts” section, that is, “the fact that the act of volition establishing a norm and an actual norm have different temporal co-​ordinates” (Weinberger 1970: 210; 1986: 39; see Petrażycki 2011[1909–​1910]: 155). This notwithstanding, Weinberger insists that “the voluntaristic quality of norms is an explicit part of their distinctive quality” (Weinberger 1970: 205; 1986: 33). 50 On this term, see note 41. 51 This capacity can be compared to what Lorini (2017) has termed “nomic capacity.” 52 This fundamental aspect of Petrażycki’s theory of law can be compared to Rodolfo Sacco’s research on “mute law” (see, for instance, Sacco 1989, 1995, 2015). 53 This not to deny that normative phenomena like deontic sentences, utterances, conduct, propositions, and states-​of-​affairs (no matter whether one calls them norms or

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not) are worthy of investigation in various fields. Further, my conclusion holds even if Petrażycki’s analysis of normative experiences is revised or supplemented in light of new developments in psychology and neuroscience.

References Ago, Roberto, 1950. Scienza giuridica e diritto internazionale. Milan: Giuffrè. Alchourrón, Carlos E., and Eugenio Bulygin, 1993. On the Logic of Normative Systems. In Herbert Stachowiak (ed.), Pragmatik. Handbuch pragmatischen Denkens. Bd. 4. Sprachphilosophie, Sprachpragmatik und formative Pragmatik. Hamburg: Meiner. Alchourrón, Carlos E., and Eugenio Bulygin, 2015a[1973–​1989]. Von Wright on Deontic Logic and the Philosophy of Law (1973/​89). In Eugenio Bulygin (ed.), Essays in Legal Philosophy. Oxford: Oxford University Press. Alchourrón, Carlos E., and Eugenio Bulygin, 2015b[1981]. The Expessive Conception of Norms (1981). In Eugenio Bulygin (ed.), Essays in Legal Philosophy. Oxford: Oxford University Press. Amselek, Paul, 1993. Les règles juridiques en tant qu’objets mentaux. Archiv für Rechts-​und Sozialphilosophie /​Archives for Philosophy of Law and Social Philosophy, 79(3): 311–​320. Amselek, Paul, 2017. Comment je vois le monde du droit. Phenomenology and Mind, 13: 30–​40. Austin, John L., 1962. How to Do Things with Words. Oxford: Oxford University Press. Conte, Amedeo G., 1995[1970]. Studio per una teoria della validità. In Amedeo G. Conte (ed.), Filosofia del linguaggio normativo. I. Studi 1965-​1981. Turin: Giappichelli. Conte, Amedeo G., 1997[1962]. Saggio sulla completezza degli ordinamenti giuridici. In Amedeo G. Conte (ed.), Filosofia dell’ordinamento normativo. Studi 1957-​1968. Turin: Giappichelli. Conte, Amedeo G., 2006. Entry “Norma.” In Enciclopedia filosofica. Milan: Fondazione Centro Studi Filosofici di Gallarate & Bompiani. Conte, Amedeo G., 2007. Norma: cinque referenti. In Amedeo G. Conte, Paolo Di Lucia, Antonio Incampo, Giuseppe Lorini, and Wojciech Żełaniec (eds.), Ricerche di Filosofia del diritto. Turin: Giappichelli. Conte, Amedeo G., 2012. Norma: cinque referenti. In Giuseppe Lorini and Lorenzo Passerini Glazel (eds.), Filosofie della norma. Turin: Giappichelli. Conte, Amedeo G., 2017. Norme: cinq référents. Phenomenology and Mind, 13: 22–​28. Di Lucia, Paolo, and Lorenzo P. Glazel, 2017. Two Semiotic Shifts in the Philosophy of Norms: Meaning Shift and Referent Shift. Phenomenology and Mind, 13: 10–​18. Fittipaldi, Edoardo, 2012. Everyday Legal Ontology: A Psychological and Linguistic Investigation within the Framework of Leon Petrażycki’s Theory of Law. Milan: LED. Fittipaldi, Edoardo, 2015. Leon Petrażycki’s Conception of Legal Dogmatics as a Science at the Service of the Principle of Legality: A Critical Defense. www.acade​mia.edu/​7448​211/​Leo​ n_​Pe​tra%C5%BCycki_​s_​Conception_​of_​Legal_​Dogmatics_​as_​a_​Science_​at_​the_​ Service_​of_​the_​Principle_​of_​Legality_​A_​Critical_​Defense_​Russian_​translation_​ published_​on_​th​e_​jo​urna​l_​Pr​avov​eden​ie_​2​013.5_​ (accessed January 20, 2018). Fittipaldi, Edoardo, 2016a. Introduction: Continental Legal Realism. In Enrico Pattaro and Corrado Roversi (eds.), Legal Philosophy in the Twentieth Century. Tome 2: The Civil Law World Main Orientations and Topics. Dordrecht: Springer. Fittipaldi, Edoardo, 2016b. Jerzy Lande. In Enrico Pattaro and Corrado Roversi (eds.), Legal Philosophy in the Twentieth Century. Tome 2: The Civil Law World Main Orientations and Topics. Dordrecht: Springer.

41

145

41

Petrażycki’s Normative Experiences  145

Fittipaldi, Edoardo, 2016c. Leon Petrażycki’s Theory of Law. In Enrico Pattaro and Corrado Roversi (eds.), Legal Philosophy in the Twentieth Century.Tome 2:The Civil Law World Main Orientations and Topics. Dordrecht: Springer. Fittipaldi, Edoardo, 2017. Reinach’s Critique of Legal Psychologism: A Few Possible Replies. Unpublished presentation. Fittipaldi, Edoardo, n.d. A Defense of “Strict Petrażyckianism”. Available at www.acade​mia. edu/​30077​494/​An_​Ex​chan​ge_​o​n_​Pe​tra%C5%BCyck​iani​sm_​b​etwe​en_​A​ndre​y_​V._​ Polya​kov_​and_​Edoa​rdo_​Fitt​ipal​di_​ (accessed April 25, 2018). Fittipaldi, Edoardo, and Elena V.Timoshina, 2017.Theory of Custom, Dogmatics of Custom, Policy of Custom: On the Threefold Approach of Polish-​Russian Legal Realism. Ratio Juris, 30, 1: 105–​122. Guastini, Riccardo, 1989. Disposizione vs. Norma. Giurisprudenza costituzionale, 34: 3–​14. Guastini, Riccardo, 1992. Dalle fonti alle norme. 2nd ed. Turin: Giappichelli. Guastini, Riccardo, 1998. Normativism or the Normative Theory of Legal Science: Some Epistemological Problems. In Stanley L. Paulson and Bonnie L. Paulson (eds.), Normativity and Norms. Critical Perspectives in Kelsenian Themes. Clarendon: Oxford. Hage, Jaap, 2005. Studies in Legal Logic. Dordrecht: Springer. Husserl, Edmund, 1983[1913]. Ideen zu einer reinen Phänomenologie und phänomenologischen Philosophie. I. Buch: Allgemeine Einführung in die reine Phänomenologie. English translation Ideas pertaining to a Pure Phenomenology and to a Phenomenological Philosophy. First Book. The Hague: Martinus Nijhoff. Kant, Immanuel, 1991[1798]. Metaphysik der Sitten. English translation The Metaphysics of Morals. Cambridge: Cambridge University Press. Kelsen, Hans, 1991[1979]. Allgemeine Theorie der Normen. English translation General Theory of Norms. Oxford; New York, NY: Clarendon Press; Oxford University Press. Lande, Jerzy, 1959[1929–1930]. Historia filozofii prawa. In Jerzy Lande (Kasimierz Opałek ed.), Studia z filozofii prawa. Warsaw: PWN. Lazerson, Max, 1930. Obščaja teorija prava: Vvedenie v izučenie prava (General Theory of Law: Introduction to the Investigation of Law). Riga: Žizn’ i Kul’tura. Lorini, Giuseppe, 2017. Il comportamento nomico degli animali non-​ umani: Verso un’etologia della normatività. Sociologia del diritto, 44, 3: 77–​105. Mohanty, Jitendra N., 2009. Intentionality. In Hubert L. Dreyfus and Mark A. Wrathall (eds.), A Companion to Phenomenology and Existentialism. Oxford: Wiley-​Blackwell. Passerini Glazel, Lorenzo, 2013. Disused Norms: Norm Atrophy and Nomotrophic Behaviour. In Claudia Stancati, Alfredo Givigliano, Emanuele Fadda, and Giuseppe Cosenza (eds.), The Nature of Social Reality. Newcastle upon Tyne: Cambridge Scholars Publishing. Passerini Glazel, Lorenzo, 2015. Shared Norms and Nomotrophic Behaviour. Phenomenology and Mind, 9: 148–​159. Passerini Glazel, Lorenzo, 2017. Normative Experience: Deontic Noema and Deontic Noesis. Phenomenology and Mind, 13: 96–​107. Passerini Glazel, Lorenzo, 2020. Le realtà della norma, le norme come realtà. Saggio di filosofia del diritto. Milan: LED. Pattaro, Enrico, 1976[1972]. Il positivismo giuridico italiano dalla rinascita alla crisi. In Uberto Scarpelli (ed.), Diritto e analisi del linguaggio. Milan: Edizioni di Comunità. Petrażycki, Leon, 1939[1925–​ 1926]. Nowe podstawy logiky i klasyfikacja umiétności. Warsaw: Nakładem Towarzystwa im. Leona Petrażyckiego. Petrażycki, Leon, 2011[1907]. Vvedenie v izučenie prava i nravstvennosti. Osnovy ėmocional’noj psihologii. 2nd ed. Abridged English translation Introduction to the Study of Law and Morality. In Leon Petrażycki (Nicholas S. Timasheff ed.), Law and

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Morality: Leon Petrażycki, with a new introduction by A. Javier Treviño. Piscataway, NJ: Transaction Publishers. Petrażycki, Leon, 2011[1909–​ 1910]. Teorija prava i gosudarstva v svjazi s teoriej nravstvennosti. 2nd ed. Abridged English translation Theory of Law and State in Connection with a Theory of Morality. In Leon Petrażycki (Nicholas S. Timasheff ed.), Law and Morality: Leon Petrażycki, with a new introduction by A. Javier Treviño. Piscataway, NJ: Transaction Publishers. Reinach, Adolf, 2012[1913]. Die apriorischen Grundlages des bürgelichen Rechtes. English translation in Adolf Reinach. In John Crosby (ed.), The Apriori Foundations of the Civil Law. Along with the Lecture “Concerning Phenomenology”. Berlin: De Gruyter. Sacco, Rodolfo, 1989. Entry “Crittotipo.” In Digesto delle Discipline privatistiche. Sezione civile, vol.V. Turin: UTET. Sacco, Rodolfo, 1995. Mute Law. The American Journal of Comparative Law, 43, 3: 455–​467. Sacco, Rodolfo, 2015. Il diritto muto. Neuroscienze, conoscenza tacita, valori condivisi. Bologna: Il Mulino. Spiegelberg, Herbert, 1935. Gesetz und Sittengesetz. Strukturanalytische und historische Vorstudien zu einer gesetzesfreien Ethik. Zürich: Max Niehans. Timoshina, Elena V., 2012. Kak vozmožna teorija prava? Èpistemologičeskie osnovanija teorii prava v interpretacii L. I. Petražickogo. Moscow: Izdatel’stvo “Jurlitinform”. Timoshina, Elena V., 2016. Max Lazerson’s Psychological Theory of Law. In Enrico Pattaro and Corrado Roversi (eds.), Legal Philosophy in the Twentieth Century: The Civil Law World, Tome 2: Main Orientations and Topics Dordrecht: Springer. von Wright, Georg H., 1963. Norm and Action: A Logical Enquiry. London: Routledge and Kegan Paul. Weber, Max (Johannes Winckelmann ed.), 1976[1921–​1922]. Wirtschaft und Gesellschaft. Tübingen: Mohr Siebeck. Weber, Max (Guenther Roth and Claus Wittich eds.), 1978[1921–​ 1922]. Wirtschaft und Gesellschaft. English translation Economy and Society. Berkeley, CA: University of California Press. Weinberger, Ota, 1970. Die Norm als Gedanke und Realität. Österreichische Zeitschrift für öffentliches Recht, 20: 203–​216. Weinberger, Ota, 1986. The Norm as Thought and as Reality. In Neil MacCormick and Ota Weinberger (eds.), An Institutional Theory of Law. Law and Philosophy Library. Dordrecht: Springer Netherlands.

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7 PETRAŻYCKI’S PUZZLE OF JURAL EMOTIONS Bridging the Psychological Theory of Law with Modern Social and Psychological Sciences Edoardo Fittipaldi1

Petrażycki’s Ethical Emotions Leon Petrażycki conceptualized jural phenomena, or law,2 by adopting as a point of departure his stipulative concept of normative phenomena. He regarded normative phenomena as couplings of perceptions/​representations3 of actions4 plus normative emotions urging5 individuals to (i) perform or (ii) abstain from performing them for their own sake, that is, not for achieving some goal.6 In case (i), Petrażycki spoke of normative appulsions, while in case (ii) he spoke of normative repulsions. He maintained that normative emotions are blanket emotions, that is, they may urge individuals to perform any behavior. Thus the same action (e.g., stoning Sabbath-​ breakers) may be the object of a normative appulsion for one person and a normative repulsion for another.7 Within normative emotions, Petrażycki distinguished between ethical emotions and selected mystic-​authoritativeness as their differentia specifica.8 He characterized the mystic-​authoritativeness of ethical emotions as: 1. 2. 3. 4.

their seeming to stem from some being opposing our Ego (in Russian, “ja”); their seeming to be provided with some sort of voice; their being experienced with a tinge of fear; their having a mystic coloration.

In this connection, Petrażycki sometimes mentioned shame, guilt, anger, and indignation but never claimed that his “homespun” conceptualization of ethical repulsions or appulsions should be considered in the terms of guilt, shame, anger, or indignation. In other words, Petrażycki did not expressly reduce his ethical emotions to those investigated by modern psychology.9 DOI: 10.4324/9781351036740-10

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Petrażycki’s ethical emotions have been compared (Rudziński 1976) to Jean Piaget’s morality of constraint (1978[1932], 1997[1932]).10 Since Piaget’s notion of the development of morality somewhat parallels Freud’s ideas on the development of the superego, I reconceptualize Petrażycki’s ethical emotions in reference to Piaget and Freud but also consider contemporary psychological theories, when compatible (cf. Fittipaldi 2012). Petrażycki’s phenomenology of ethical emotions is compatible with Piaget’s and especially Freud’s ideas in several respects. First, Petrażycki’s claim that to their experiencers ethical emotions appear as if originating from an agency other than the ego easily fits into Freud’s conjecture that the superego emerges via the child’s introjection of their caregiver(s). Second, Petrażycki’s contention that ethical emotions manifest themselves as if provided with a “voice” fits with Piaget and Freud, if one considers the role played by verbal commands and prohibitions in child-​rearing. As for the tinge of fear with which ethical emotions are experienced, it can be explained by considering that children usually love and fear their caregivers (and fear losing their love)—​a point clearly made by Freud and Piaget. Finally, the mystic coloration of Petrażycki’s ethical emotions can be explained by considering that both Freud and Piaget emphasized that the child bestows upon the caregiver characteristics that in monotheistic cultures are typically ascribed to god.11 My proposal is to understand Petrażycki’s ethical repulsions or appulsions as the shame, guilt, anger, and indignation, experienced in the perception/​representation of certain behaviors. For example, the appulsion to help a friend in need could be seen as the anticipation of the guilt one would experience, were she not to help him. Several factors cause repulsions/​appulsions to be “projected” onto actions, which may then be experienced as having the inherent quality of being prohibited or obligatory. Throughout this chapter, I will refer to this phenomenon as “hypostatization” because it may also result in something more than mere illusory qualities (for example, illusions of “things” like debts or rights).12

Petrażycki’s Puzzle of Jural Emotions If this reconceptualization of Petrażycki’s ethical emotions explains them in terms of the modern psychology of emotions, it is more difficult to do so in his further distinction of ethical emotions into moral and jural emotions. Both moral and jural emotions amount to mystic-​authoritative appulsions or repulsions toward a certain action, but it is only in the case of jural emotions that an action or abstention is experienced as owed to somebody, who is consequently experienced as a “right-​holder.”13 What is this owedness (pričitaemost’), or attributive nature (atributivnaja priroda), that distinguishes jural emotions from moral emotions? Further, what is the

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connection—​if any—​between a jural emotion (pravovaja ėmocija) and the modern psychological concept of sense of entitlement?14 To answer these questions, consider the following passage from Petrażycki’s Theory of Law and State: Due to its attributive nature, in the domain of jural psyche the duty-​holder’s fulfillment—​even if it is the supply of something extremely precious—​is construed [predstavljaetsja], with regard to the other side, not as the causation [pričinenie] … of a plus …, as a benefit, but only as the non-​depriving [ne-​lišenie] of the other side of what is attributed [predstavleno] to her with [an aura of] supreme authoritativeness [c vysšim avtoritetom], that is, as the receiving from the other side of “one’s own” (suum tribuere –​ suum accipere). The duty-​holder’s non-​fulfillment is experienced [soznaetsja] as the depriving [lišenie] of the other side of what is owed [pričitaetsja] to her, as the causation of a minus, of an injury [uščerb] (laesio), as an encroachment, or aggressive action [agressivnoe dejstvie]. 1909–​10: 169; 2011[1909–​10]: 110, translation modified It appears that Petrażycki connects jural emotions with aggression. Thus, if shame and guilt may contribute to a reconceptualization of Petrażycki’s moral emotions,15 aggression seems to play a crucial role in the case of jural emotions. He holds that the frustration of a jural expectation is experienced as an aggressive action and that such frustrations trigger “malicious-​repressive reactions” (cf. 1909–​10: 170 and 172; 2011[1909–​10]: 110), that is, what today can be referred to as forms of reactive aggression. This is why, according to him, jural phenomena, as distinct from moral ones, have a conflict-​producing nature. To my knowledge, though, nowhere does he expressly conceptualize malicious-​ repressive reactions in terms of aggression (or reactive aggression to perceived aggression). We can now propose two incompatible hypotheses: 1. an individual reacts aggressively to aggressive behaviors because of certain jural emotions, or 2. a jural emotion is nothing but a release of aggression that makes us construe certain behaviors as aggressive. If we adopt the first hypothesis, we must explain jural emotions in terms of psychical phenomena other than releases of aggression. A theoretical option is sense of entitlement. A problem with sense of entitlement, though, is that the literature on it is surprisingly exiguous. If we adopt the second hypothesis, we are ultimately equating jural emotions with releases of aggression. This, however, requires further qualification, as it seems hardly viable to conceptualize every fit of aggression

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as a jural emotion.16 Given that there is no way to determine which hypothesis Petrażycki would have supported, I refer to this as Petrażycki’s “puzzle” of jural emotions. In what follows, I argue for the second hypothesis, introduce a few qualifications, and connect it to sense of entitlement, thus also offering a contribution to the understanding of this latter concept. My approach is compatible with Petrażycki’s principle of adequacy.17 I not only propose a more precise conceptualization but also a proper generalization of Petrażycki’s notion of jural emotion. In what follows, I explain and justify my reconceptualization. I then compare my proposal with the psychoanalytic treatment of the sense of entitlement. Next, I demonstrate how my proposal can cross-​fertilize Petrażyckianism with Lonnie H. Athens’s (1992[1989], 1997) criminology.18 Finally, I show how my proposal corresponds with Petrażycki’s idea that legal policy should pursue love and the demise of law (and morality).

Jural Emotions and Aggression To prevent Petrażycki’s jural emotions from being treated as just any type of release of aggression, I propose that they be characterized as follows. A jural emotion is a release of socialized aggression—​ including inward aggression—​ unleashed by (the perception/​representation of) the behavior19 of some being, which is experienced20 as animate,21 provided that: 1. the experiencer’s aggressiveness is usually restrained, and 2. she ultimately experiences22—​consciously, subconsciously, or unconsciously23—​ that being’s behavior as 2.1. an attack to (or an attempt to attack) her body, or as 2.2. a restriction of (or an attempt to restrict) her bodily movements. If a release of aggression is not unleashed by (what is experienced as) an animate being, we are dealing with a reaction to a threat posed by (what is experienced as) the inanimate environment. Therefore, this situation does not involve ethical repulsions. In such a case, the experiencer does not expect the threatening object to recognize and endure her aggressive reaction. If the experiencer’s aggression is not restrained, we are dealing with a non-​ socialized individual such as a young of feral child.24 In such a case, it is impossible to distinguish releases of socialized aggression from releases of non-​socialized aggression. Here we are interested only in releases of socialized aggression. Depending on whether the experiencer experiences the being’s behavior as a physical attack or a restriction of his or her bodily movements, we are dealing with either a jural emotion or indignation. Indignation refers to any socialized aggression that is evoked by perceptions/​representations of behaviors experienced as something other than bodily attacks or restrictions.

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I equate Petrażycki’s jural emotions with anger, that I conceptualize as any socialized aggression toward a behavior consciously, subconsciously, or unconsciously experienced as a physical attack or a restriction of an individual’s bodily movements, provided the experiencer ascribes that behavior to an animate being. This proposal is compatible with Petrażycki’s statement that in the case of jural phenomena Other’s behavior is ultimately experienced as an injury to the detriment of Self. Thus, it is by virtue of Self ’s anger toward Other that they are experienced, respectively, as a right-​ holder and a jural25 duty-​holder.26 A textual argument in support of the idea of equating jural emotions with anger is that Petrażycki speaks of being “ ‘blinded’ by jural passion” (“osleplennyj” pravovoj strast’ju, 1909–​10: 64, 2011[1909–​10]: 50), an expression that is found in many languages in reference to anger. As previously stated, my proposal also distinguishes between jural emotions (anger) and indignation. To my knowledge, Petrażycki did not make such a distinction. While he did sometimes use the term “jural indignation” (pravovoe negodovanie), this is a term that is terminologically incompatible with my stipulative definition of “indignation.”27 Petrażycki spoke of jural indignation, but I know of no passage where he also conceptualized moral indignation. On my conceptualization, indignation is by definition a moral phenomenon. For example, consider a bystander’s aggression toward a deviant duty-​holder. If that bystander has a fit of aggression against that duty-​holder as a result of their identification with the “victim”28 that bystander is experiencing anger. If, instead, that bystander’s aggression is not caused by their identification with the victim, it is a moral phenomenon akin to Freud’s “narcissism of minor differences,”29 or “indignation.” Generally, indignation involves the pure pleasure of being violent. In this connection, a few words on Svend Ranulf ’s (1938) sociological work on indignation (see also Barbalet 2002) are in order. Ranulf did not distinguish between angry bystanders, who identify with the victim, and indignant ones, who do not identify with the victim. This is because Ranulf (1938: 1) defined indignation as “the emotion behind the disinterested tendency to inflict punishment” and regarded it as “a kind of disguised envy,” whereas I understand envy as a form of anger. From my perspective, envy is a (frequently inner) release of aggression for not being treated equally to others. In other words, envy is a jural emotion that has as little to do with disinterestedness as the principle of equality in Freud’s reconstruction.30 Ranulf ’s indignant individual does not need to identify with the “victim” (e.g., the betrayed spouse, in case of adultery) for it is the indignant individual that is the victim. That is to say, he or she is the angry individual, who unconsciously experiences her-​or himself as deprived of the right to also commit adultery (to keep with the same example). This is quite far from a disinterested form of aggression. For aggression to be a form of indignation, it must be truly disinterested, also at a subconscious and unconscious level. In other words, the behavior to which it is directed must be a mere pretext for being violent.31

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Thus far we have been analyzing jural emotions from the point of view of a right-​holder and of a bystander who actively identifies with the right-​holder. But, we must also consider another phenomenon related to the jural emotions possibly found with bystanders: their passive identification with the right-​holder, which results in their tolerance of or non-​surprise at the right-​holder’s aggression when another individual (experienced as a duty-​holder) behaves in a certain way. The tolerance of or non-​surprise at an individual’s anger can be found not only within bystanders but also within those from whom a behavior is jurally expected.32 The fact that Self is not surprised at or even passively endures Other’s aggression in the event Self frustrated an expectation of Other’s amounts to Self experiencing a jural emotion. Further, Self can be regarded as a full-​fledged jural duty-​holder under the following three conditions33: 1. Self believes that Other’s (i.e., the right-​holder’s) aggression is due to Self ’s failure to behave in a certain way; 2. Self believes34 that Other experiences Self ’s own behavior as a physical attack or restriction to her (Other’s) bodily movements; and 3. Self experiences a jural appulsion concerning Other’s behavior, including her aggression to Self.35 But, what is meant by saying that the jural duty-​holder experiences a jural appulsion toward Other’s behavior, including her aggression? If the duty-​holder’s jural emotions are not those of shame or guilt—​thus combining jural and moral phenomena—​we must conclude that the duty-​holder identifies with the right-​holder. Given that I regard jural emotions as a form of aggression, I consider the duty-​holder’s experience of herself as a jural duty-​holder to be akin to the identification with the aggressor (in the psychoanalytic sense of this expression).36 Identification with the aggressor may even involve the jural duty-​ holder’s going along with the right-​holder’s aggression against her.37 Jay Frankel (2002: 105) distinguishes concordant and complementary identification: If I [the bystander] am with someone who is outraged about an injustice [the right-​holder] and I respond by also feeling outraged, I have made a concordant identification; if I [now, the jural duty-​holder] am with the same outraged person but instead feel guilty, as if I have caused this person to be hurt, I have made a complementary identification. Frankel 2002: 105, emphasis added Psychologically, concordant identification creates or—​to be precise—​constitutes bystanders, while complementary identification constitutes jural duty-​ holders. Since identifying with the aggressor may cause an individual to “fee[l]‌the passion of the aggressor as [their] own” (Frankel 2002: 104), guilt is irrelevant. A duty-​ holder’s complementary experience of the right-​holder’s anger is enough to speak of the presence of a jural emotion within the duty-​holder, who then becomes by

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definition a jural duty-​holder. In other words, the jural emotions of duty-​holders should be seen as complementary identifications with the right-​holder (and her anger38)—​and thus, without guilt. This reduction of Petrażycki’s jural emotions to anger, in turn, reduced to a specific form of socialized aggression is influenced by psychoanalysis. However, this approach is also compatible with the cognitive-​psychological literature where we find a distinction between two cognitive antecedents of anger: The cognitive antecedents that initiate anger … can be summarized as follows: Something (usually another person …) interferes with the person’s execution of plans or attainment of goals (by reducing the person’s power, violating expectations, frustrating goal-​ directed activities). Alternatively, the person perceives another as harming him or her in some way (inflicting physical or psychological pain). Shaver et al. 1987: 1077, emphases added There is a direct connection between these two cognitive antecedents and restrictions of one’s bodily movements and attacks to it, respectively.39 In this connection, the advantage of psychoanalysis is that it considers the unconscious and our ability to redirect our drives, ideas that explain why a debtor’s failure to pay on time or a neighbor’s challenge to our right of way may be experienced as physical attacks or restrictions to our bodily movements.40 These psychoanalytical notions are also compatible with Petrażycki’s conception of the blanketness of ethical emotions, including jural ones.41 We may experience as bodily attacks or restrictions the most diverse behaviors. Two related issues deserve mention at this point: 1. how anger and indignation emerge through social interactions, or—​more precisely—​primary socialization; 2. the role played by “rationality” in the stabilization of anger (and indignation) into dispositions to become angry only under typified situations, whose non-​ instantiation may, in turn, be hypostatized into the object of a right.42 It is clear how anger and indignation arise from aggression. Infants often react with aggression when their needs or wishes are not immediately met. One of the main concerns of caregivers is to socialize their children to restrain or “tame” their aggressive drives. But, much more important to caregivers is their children’s safety. Thus, there are two situations where caregivers typically tolerate—​or even encourage—​ their children’s aggressive impulses: attacks to their bodies or restrictions to their bodily movements. I propose that jural emotions indirectly emerge from the caregivers’ tolerance for aggression in these two situations.43 If this is correct, jural emotions arise from our special relation to our body, which is the “thing” that we (experience to) own most (see Fittipaldi 2019). This is compatible with

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Petrażycki’s idea that a jural obligation is an obligation experienced as belonging to (or “attributed to”) a given person. In other words, according to Petrażycki, a right-​holder can be reconstructed as an individual experienced as owning another individual’s obligation. If this is how we “learn” to experience anger, or jural emotions, then how we “learn” to become indignant is completely different. Situations in which a child learns to become indignant are when caregivers exhibit aggression or tolerate it in their child (or others) for reasons other than bodily attacks or restrictions, and, possibly, encourage such behaviors.44 In this way, the child learns that there are situations where being violent against others is riskless, or even praiseworthy. These situations are unrelated to attacks or restrictions to one’s body. Just think of children exposed to racist caregivers. The point is to understand Petrażycki’s jural emotions in the terms of any socialized aggression (including purely fantasized ones) unleashed by behaviors experienced as bodily attacks or restrictions.45 Because aggression may be socially dangerous for the aggressor, people usually learn to reduce and typify anger-​eliciting situations. Rationalization, or typification, is a two-​stage process.46 First, an individual typifies anger-​eliciting behaviors, then typifies certain “opposite” behaviors that prevent the elicitation of that anger. These latter behaviors may become the objects to which jural emotions attach (i.e., objects of “rights,” “entitlements,” “jural obligations”—​ if hypostatization obtains).47 Thus far we have been discussing two typical anger-​eliciting situations: physical attacks and restrictions to one’s body. But Petrażycki identified three kinds of rights: (1) rights to one’s own actions, (2) rights to another’s actions, or jural obligations, and (3) rights to another’s abstentions, or jural prohibitions.48 But how do these types of rights connect with the idea that all jural phenomena can be traced to aggressive reactions to bodily attacks and restrictions? As for rights to one’s own actions, these result from the disposition to react aggressively toward behaviors experienced as restrictions to one’s bodily movements. Examples are the idea of having a right of way emerging from a barred path or the idea of having a right to free speech emerging from somebody’s preventing us from expressing our view on some sensitive issue. On the other hand, rights to others’ abstentions, arguably, result from the disposition to react aggressively toward behaviors experienced as physical attacks. An example is the idea of having the right to bodily integrity emerging from somebody’s assaulting us. A more complex example is the experience that one should not encroach upon one’s property, provided that one accepts the hypothesis that property is unconsciously experienced as an extension of one’s body (see Fittipaldi 2019). But how are we to trace the experience of rights to others’ actions (the case where we “own” others’ obligations) to bodily attacks or restrictions? While there is more than one answer to this question, at least one of them concerns reciprocation.

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Ethologists (e.g., Trivers 1971; McGuire 1991; De Waal 1996) maintain that non-​reciprocation is a typical elicitor of moralistic aggression—​a term used by ethologists in a way that seems compatible with my usage of anger.49 Michael McGuire, for example, writes: It is known that nonreciprocation by someone who has been helped results in anger [and] that feelings of anger are difficult to alter, although overt behavioral responses to such feelings may be controlled. Because of the social consequences of overt anger, much of our upbringing deals with learning and refining constraints on direct action and alternative strategies of retaliation. McGuire 1991: 373, emphasis added The rationalization of nonreciprocation may result in the hypostatization of a right to reciprocation. Anger for nonreciprocation can be ultimately traced to an aggressive reaction to a physical attack. Given that there is usually a cost for those who provide help, if that help is unreciprocated, that cost becomes a loss, which is usually experienced as an injury (Petrażycki’s laesio) (cf. McGuire 1991: 375 f.). The same idea can be applied to contracts where one party, Sofia, has fulfilled her obligations, while the other party, Francesco, has yet to do so. Francesco’s failure to perform may cause Sofia to experience her own performance as a pure loss and to respond with anger. If this is correct, such an experience might be ultimately traced to an amputation. This conception can be adapted as to also apply to all cases in which an individual is induced to rely on another’s behavior. I now briefly discuss the role played by rationality, as distinct from rationalization,50 in the stabilization and possible hypostatization of anger into experiences of rights. That we may experience virtually any event as a physical attack or bodily restriction capable of resulting in releases of aggression does not mean that we typify, or rationalize, all those events as anger-​elicitors, and then necessarily experience entitlement to their non-​occurrence. We sometimes blame ourselves for becoming angry for silly reasons. This may prevent the hypostatization of certain jural experiences into full-​blown experiences of rights. This is the case with envy. For example, most bald people do not experience the right that all people should be bald or shave their heads. Usually, their jural emotions of envy—​if any—​do not become stabilized, and even if they do, they do not give rise to such hypostatizations as beliefs in rights or entitlements. Be that as it may, the principle of adequacy requires that we always treat as full-​ fledged jural phenomena even the slightest and most irrational outbursts of anger. Jural emotions cannot be restricted to only “rational” jural emotions. Needed are distinct theories of emotional rationality and rationalization that are able to include the pathological phenomena investigated by psychoanalysis.51

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Psychoanalysis and Petrażyckianism Before turning to the utility of cross-​fertilizing Petrażyckianism with Lonnie Athens’s criminology, it is necessary to discuss the psychoanalytical conception of sense of entitlement. To begin with, psychoanalysts identify three types of entitlement. They do so by using somewhat inconsistent terms: 1. nonentitlement (also referred to as underentitlement, underdeveloped entitlement, and restricted entitlement); 2. normal entitlement (also called adaptive and healthy entitlement); 3. overentitlement (also known as excessive or exaggerated entitlement).52 A problem with this triumvirate is that, to my knowledge, psychoanalysts do not distinguish (α) Self ’s ability to at all experience jural emotions—​i.e., to ascribe rights to themselves or others—from (β) Self ’s excessive ascription of rights to Other(s). Regarding case (α), Petrażycki spoke of jural idiotism (pravovoj idiotizm).53 As for (β) (which is not a form of jural idiotism), it features as (1) in the following typology: 1. hypertrophy of the passive-​jural psyche (i.e., the excessive tendency to experience oneself as a jural duty-​holder), with servilism as a typical manifestation of this type (1909–​10: 150); 2. healthy jural psyche; 3. hypertrophy of the active-​jural legal psyche (gipertrofija aktivno-​pravovoj psihiki), “which consists of the subject’s acquiring the propensity to ascribe to herself with regard to others countless unreasonable and excessive … rights without recognizing the same rights for others” (1909–​10: 98; 2011[1909–​10]: 71, translation modified). Petrażycki stresses the importance of a healthy legal psyche.54 On the other hand, in the case of hypertrophy of the active-​jural legal psyche, he speaks of jural pathology: [I]‌f, for example, a mentally ill person views himself as an emperor and requires obedience on the part of his imaginary subjects, and resents [vozmuščaetsja] and becomes angry [negoduet] at their disobedience and at other encroachments on his supreme rights, then this phenomenon, … and, in general, the imperative-​attributive experiences of a pathological character, fully come under the here devised concept of law [pravo], and can even constitute a subject of study by psychological jurisprudence under the name of pathological law [patologičeskoe pravo], jural pathology, or similar. 1909–​10: 106

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In sum, Petrażycki offers a more precise classification of the phenomena that psychoanalysts refer to as “sense of entitlement.” He does so by distinguishing between jural idiotism and the ability to experience jural emotions. In this latter case, he further identifies three kinds of jural psyche: a healthy one, a hypertrophic passive one, and a hypertrophic active one.55 Further, Petrażyckianism allows for jural emotions to be experienced by interactants other than the right-​holder, whereas the term “sense of entitlement” refers to the experience of the right-​holder alone. Let us now consider a more significant difference between Petrażyckianism and psychoanalysis; a difference that concerns the very origin of sense of entitlement, or jural emotions. Psychoanalysts assume that innocent suffering (including suffering produced by a disease) may bring about a sense of being entitled to some sort of reparation or revenge (e.g., Moses and Moses 1990: 64–​5). Contrary to psychoanalysts, Petrażycki seems to maintain that all jural convictions—including the conviction that suffering entitles one to reparation or revenge—​result from socialization. Freud (1967[1916]: 366–​7) spoke of people who derive (leiten ab) a special right (Vorrecht) from an injustice (Unrecht) they suffered during early childhood, an injustice of which they know themselves to be guiltless (unschuldig).56 It is, however, difficult to understand why, for example, a child should not develop the quite different idea that external reality is entitled to treat her or him as it pleases. Further, psychoanalysts assume that children have an inborn concept of entitlement, and sometimes even an inborn conviction of having certain legitimate rights.57 This notion, however, is incompatible with Petrażyckianism as I understand it. However important these differences may be, it is nonetheless the case that Petrażyckianism and psychoanalysis share a broad understanding of what can be experienced as a jural duty-​holder.58 [A]‌s to who or what can be … a duty-​or a right-​holder … , … duty-​or right-​holders … can be all possible [objects of] representations of a personal [personal’nyj, ličnyj] character. If jural emotions … are associated with them, the objects of those representations are duty-​or right-​holders. Due to the richness and bizarreness of human phantasy there is an immense quantity of those entities (qua objects of representations).Various objects of an inanimate nature may be represented as animate: stones, plants, etc., animals and their souls, people, their embryos, their souls after death, human societies and institutions (qua objects of representations), various deities, and other incorporeal spirits. Everything depends on the level of a given people’s culture, on religious beliefs, on poetic abilities, etc., or on the individual characteristics of a given person, his or her age, etc. (in infantile law there are duty-​and right-​holders, for example, dolls, that cannot be found in the legal psyche of adults, and the other way around). Petrażycki 1909–​10: 416, 2011[1909–​10]: 189 f., translation modified

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Clearly, the psychoanalytic understanding is even broader. On the one hand, it includes unconscious duty-​and right-​holders. On the other, it includes such jural duty-​holders like destiny, or life in general. This is why, Karen Horney, when developing her concept of neurotic claim, spoke of “secret claims toward life in general” (1991[1950]: 46), where by “secret” she meant sub-​or unconscious claims where the role of jural duty-​holder is played by “life.” Now, Petrażycki did sometimes expressly refer to the “vague consciousness” (smutnoe soznanie) of right-​holders (e.g., 1909–​10: 414), which should be investigated by the psychological science of law (ibid.).Therefore, it can be argued that broadening his concept of right-​and duty-​holder to comprise not only life or destiny but also all sorts animate beings present in our unconscious is both compatible with Petrażycki’s theory of law and required by his principle of adequacy (see Glossary).

Petrażycki’s Theory of Law and Lonnie Athens’s Criminology One of the consequences of applying the adequacy principle is that it allows for unexpected cross-​fertilizations. In this section, I offer an example. Recasting Petrażycki’s jural emotions as a particular type of aggression release entails seeing many of the violent offenders that Lonnie Athens discusses in his criminological works as motivated by jural emotions.59 Such a reconstruction corresponds with Petrażycki’s idea of hypertrophic active-​jural psyches. Athens identifies three kinds of violent criminal actors. Depending on their generalized other (a concept of symbolic interactionism60) they are the following: People who commit substantially violent acts have different generalized others … Those with violent self-​images have an unmitigated violent generalized other—​an other providing them with a pronounced and categorical moral support for acting violently toward other people. Those who hold incipiently violent self-​images have a mitigated violent generalized other—​an other providing them with pronounced, but limited, categorical moral support for acting violently toward other people. Finally, those who hold nonviolent self-​images have a nonviolent generalized other—​an other that does not provide them with any pronounced, categorical moral support for acting violently toward other people, except in the case of defending themselves and intimates from physical attack. Athens 1997: 99, emphases in the original To relate Athens’s “moral support” with a Petrażyckian “jural support,” we must ultimately trace the “interpretations” that offenders give to the situations that lead them to commit violent acts either (i) to experiences of actual or potential attacks to their or others’ bodies and/​or (ii) to experiences of actual or potential restrictions to their or others’ bodily movements. According to Athens, criminal acts result from four situational interpretations:

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1. physically defensive interpretations, where the actor indicates to himself … (1) that the victim will soon physically attack him or an intimate, such as a spouse or a child, or (2) that the victim is already physically attacking him or an intimate, [and,] by assuming an attitude of his generalized other …, indicates to himself that he ought to respond violently. 1997: 33–​4; 2. frustrative interpretations, where the actor indicates to himself … (1) that the victim is resisting or will resist the specific course of action that [he] seeks to carry out or (2) that the perpetrator should cooperate in a specific course of action that he does not want to be carried out, [and,] by assuming the attitude of his generalized other, indicates to himself that he ought to respond violently toward the victim. 1997: 36, see also 145; 3. malefic interpretations, where the actor indicates to himself that the victim’s gestures mean that the victim is deriding or badly belittling [him] 1997: 38; 4. frustrative-​malefic interpretations that combine frustrative and malefic interpretations (1997: 40). It is straightforward to equate physically defensive interpretations with experiences of certain behaviors as actual or potential attacks to one’s own or others’ bodies and frustrative interpretations with experiences of certain behaviors as actual or potential restrictions to one’s own or others’ bodily movements. As for Athens’s malefic interpretations, these are involved in crimes intended to defend the offender’s honor, or dignity. I propose that the defense of one’s honor, or dignity, can be traced to the defense of one’s body.61 A person deprived of her honor ultimately experiences herself as bodily “waste,” the utmost object of disgust (on the possible causes of this phenomenon, see Becker 1973 and Rozin et al. 2008). Those who defend their honor through violence do so to avoid experiencing themselves and to be experienced by others as excrements.62 As for Athens’s fourth type, frustrative-​malefic interpretations, they involve interpretations in terms of bodily attacks as well as movement restrictions. This is why Athens’s moral support for acting violently can be considered a form of jural support that stems from the child’s aggressiveness having been socialized into anger. Athens’s generalized other—​and later,“phantom community” (see note

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60)—​corresponds to the child’s introjected caregivers and, subsequently, to the peers he or she interacted with during socialization. Finally, that Athens’s moral support can be compared to Petrażycki’s jural emotions is apparent in the following passage: Too many men and somewhat fewer women[63] hold much too broad a conception of their perceived right, legal or extra-​legal, to attack people physically who unduly provoke them. Athens 1992[1989]: 91,64 emphasis added; see also Athens 1997: 156 To be sure, one difference between Athens and Petrażycki is that the former implies that it is possible to distinguish a really existing right from a merely perceived one, while for Petrażycki, when it comes to rights (or duties), esse is percipi (“to be is to be perceived”).65 This difference, however, does not negate the compatibility of their approaches.

Conclusion My reconceptualization of Petrażycki’s jural emotions is also compatible with his statement that the ultimate goal of legal policy is the extinction of jural phenomena and their replacement with love, or benevolence—​an ideal that transcends jural and moral phenomena: The ideal of love, in our sense, is not only beyond law [sverhpravnyj] but also beyond morality [sverhnravstvennyj]. 2010[1913]: 593 If jural emotions are seen as a type of aggression release, it is hardly surprising that Petrażycki would believe that legal policy should seek the demise of law itself. As for moral emotions, if they are reduced to guilt, shame, and indignation, they are also hardly compatible with love.This is obvious for indignation as understood here, but also holds for shame and guilt. Arguably, acting out of love is quite different from acting to avoid feeling guilt or shame. But this is a topic for another study.

Notes 1 I wish to thank Carol Weisbrod, A. Javier Treviño, and my wife, Barbara Giacon, for the many discussions we had on this subject. Of course, the responsibility for mistakes is mine alone. 2 With the goal of stressing Petrażycki’s correlative conception of law, as an adjective for “law” I will use the term “jural” rather than “legal.” 3 On these concepts, see Glossary. 4 Petrażycki distinguished three kinds of behaviors: actions (facere), abstentions (non facere), and tolerances (pati). Since this classification does not meet Petrażycki’s precept that distinctions should have one single principle of classification (or principium divisionis), I refer

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only to actions and abstentions, and use “behavior” as their hypernym. As for tolerances, I reinterpret them as duty-​holders’ inward recognitions of right-​holders’ claims, regardless of whether those are claims over a duty-​holder’s or a right-​holder’s (own) behavior (see Fittipaldi 2012: 162: note 26). 5 The verb “to urge” should not be understood in the sense that the “urged” behavior gets necessarily performed. According to Petrażycki, a person may well overcome a normative urge to act in certain way (e.g., avenging a relative) and act otherwise (e.g., reconciling with their murderer). In such cases, psychical phenomena like remorse may obtain. 6 In this case, Petrażycki spoke of teleological motivation (from the ancient Greek word télos meaning “goal”). On this concept, see Glossary. 7 To avoid misunderstandings, it should be stressed that normative phenomena need not occur only in the psyche of a duty-​holder or a right-​holder. They may also occur in the psyche of a third-​party, a bystander. Petrażycki gives the example of normative emotions experienced while reading a novel or attending a theater performance. 8 Petrażycki conceptualized aesthetic emotions as normative emotions devoid of mystic-​authoritativeness. 9 Petrażycki associated emotions with our reactions to food and referred to Darwin 1872 (Petrażycki 1908: 248, note 1). Further, to my knowledge, nowhere did Petrażycki mention psychoanalysis. 10 This line of investigation would be carried further by Iwona Jakubowska-​Branicka (1986). 11 For more details, see Fittipaldi (2012). 12 See, extensively, Fittipaldi (2012). 13 I here use quotation marks to stress that no one is a right-​holder (or a duty-​holder) unless experienced as such. However, quotation marks will not be used hereafter unless strictly necessary. 14 It was Rudolf von Jhering (1997[1872]), (1915[1872]) who first emphasized the importance of the sense of entitlement (Rechtsgefühl, also rendered as “feeling or sense of right”).To my knowledge, nowhere does Petrażycki offer a detailed criticism of Jhering’s concept. A mere hint at it can be found in Petrażycki (2010[1897]: 59). This is perhaps due to the low esteem in which he held von Jhering. However, the Petrażyckian phrase pravovaja ėmocija (“jural emotion”) and the Jheringian phrase Rechtsgefühl (lit., “feeling of right”) are undeniably similar (cf. Cotterrell 2015: 8 and Sorokin 1947: 674). A crucial difference, though, is that while Jhering held that “[i]‌t is not the sense of right that has produced law, but it is law that has produced the sense of right” (1877, xiii; 1913[1877]: lix), for Petrażycki the opposite is true: it is the conflict-​generating nature of sense of entitlement that calls into being what is usually referred to by the term “law” (see Glossary, “unifying tendencies”). On a further difference between Petrażycki’s jural emotions and von Jhering’s sense of entitlement, see note 55. 15 On pride and disgust, see Fittipaldi (2012). 16 Trivers (1971: 49) held that “[m]‌ uch of human aggression has moral overtones.” However, maintaining that aggression may have moral overtones is not the same as maintaining that the subclass of ethical emotions called jural emotions should be reduced to fits of aggression. 17 On this principle, see the Glossary and Chapter 5, in this volume. 18 My treatment of Athens’s approach will be from the perspective of a sociologist of deviance. I am not interested here in the way certain behaviors are characterized by this or that official law (cf. note 65), let alone legal dogmatics (on these concepts, see

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Glossary). A second edition of Athens’s classical Creation of Dangerous Violent Criminals has been recently republished (2017). Here, Athens writes that he reconceived the model proposed in 1992[1989] in terms of superordination and subordination (2017: xiv). I believe that Athens’s new idea that the “atom,” or “basic building block” from which all conflicts are built are disputes over dominance (see, e.g., 2015: 12 and 126), should be compared to Petrażycki’s conceptualization of authority as a compound jural relationship (Fittipaldi 2016: 484 and 494–​8) and to the “even more basic building blocks” proposed in this chapter (i.e., attacks or restrictions to one’s body, see below in text). Due to space limitations, I cannot do this here. 19 The term “behavior” should be broadly understood as any event that is ascribed to an agency experienced as animate. Based on a psychoanalytical interpretation of Piaget 1973[1926] (195–​281), it can be argued that even adults have the tendency to interpret events animistically, especially in case of regression (see also Fernandez and Wasan 2010: 452). 20 The verb “to experience” is used here to refer to Petrażycki’s quasi-​phenomenological use of the verbs periživat’ (lit., “to live through”—​a verb corresponding to the German verb erleben) and soznavat’sja (“to be present in consciousness as”). 21 According to Petrażycki, any objectively inanimate object within one’s consciousness may be ascribed rights and duties, provided that it is experienced as animate. On this subject, see Chapters 10 and 11, in this volume, as well as note 19, and the “Psychoanalysis and Petrażyckianism” section. 22 In this context, the Petrażyckian verb “to experience” conveys a meaning largely compatible with “to interpret,” as used by Lonnie Athens (e.g., 1997: 115, quoting Blumer 1956: 686). I prefer not to use “to interpret” because—​following Hans Albert (1994)—​ I do not wish to imply that these phenomena are akin to the understanding of texts. 23 By “subconscious” I refer to psychical contents that at a given moment are absent within one’s consciousness but can be readily recalled to it. By “unconscious” I to refer psychical contents that—​if at all—​are recalled to consciousness only by means of psychoanalytic therapies or other special ways (e.g., dreams, hypnosis, traumas). 24 This is not to say that socialized aggression does not exist in animals. Cf., De Waal 1996 (112–​13). 25 Jural duty-​holder because the duty is experienced as the object of another’s right. Where the duty is not experienced as anybody’s object of right, we are dealing with a moral duty-​holder. 26 Let me reiterate that it is anger that turns an individual into a right-​or a jural duty-​ holder and may create corresponding norms (as mental objects). If Self becomes angry at a certain action by Other, this may cause Self to consciously experience herself as entitled to the omission of that action—​a phenomenon that may occur also exclusively within Self ’s or a third-​party’s psyche. In other words, it is anger that creates rights, entitlements, and norms, and turns a behavior into the violation of a jural norm, rather than the other way around (in the case of morality other emotions come into play, like guilt, shame, indignation). This is the only way to keep with emotivism and avoid hypostatizing qualities (e.g., being a right-​holder) or things (rights, norms, etc.), turning them into spurious anger elicitors (“She became angry because he encroached upon her rights”)—​as unfortunately often psychologists do (e.g., Wranik and Scherer 2010: 248; for further examples, see Berkowitz 2010: 272). 27 There is a passage where Petrażycki speaks of a “strong outbreak of imperative-​ attributive [=​ jural] emotions, that is, strong jural indignation” (“sil’naja vspyška

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imperativno-​atributinyh èmocij, sil’noe pravovoe negodovanie”). Due to its particular usage in Russian, the comma here can be rendered as “that is.” Unfortunately, this passage is poorly translated into English (2011[1909–​10]: 65). 28 By “victim” I mean a person who is experienced as enduring a bodily attack or restriction. The approach adopted here presupposes that virtually any behavior can be experienced as a bodily attack or restriction—​even the deliberate abstention from hurting or torturing (e.g., in certain sadomasochist interactions). 29 Here is the passage where Freud discusses this topic: It is clearly not easy for men to give up the satisfaction of th[e]‌inclination to aggression. They do not feel comfortable without it. The advantage which a comparatively small cultural group offers of allowing this instinct an outlet in the form of hostility against intruders is not to be despised. It is always possible to bind together a considerable number of people in love, so long as there are other people left over to receive the manifestations of their aggressiveness. I once discussed the phenomenon that it is precisely communities with adjoining territories, and related to each other in other ways as well, who are engaged in constant feuds and in ridiculing each other—​like the Spaniards and Portuguese, for instance, the North Germans and South Germans, the English and Scotch, and so on. I gave this phenomenon the name of “the narcissism of minor differences,” a name which does not do much to explain it. We can now see that it is a convenient and relatively harmless satisfaction of the inclination to aggression, by means of which cohesion between the members of the community is made easier. 1956–​74[1929]: 114 30 Here is the passage where Freud proposes his famous hypothesis on the origin of the principle of equality: [F]‌or a long time nothing in the nature of herd instinct or group feeling is to be observed in children. Something like it grows up first of all, in a nursery containing many children, out of the children’s relation to their parents, and it does so as a reaction to the initial envy with which the elder child receives the younger one. The elder child would certainly like to put its successor jealously aside, to keep it away from the parents, and to rob it of all its privileges; but in the face of the fact that this child … is loved by the parents in just the same way, and in consequence of the impossibility of maintaining its hostile attitude without damaging itself, it is forced into identifying itself with the other children. So there grows up in the troop of children a communal or group feeling, which is then further developed at school. The first demand made by this reaction-​formation is for justice, for equal treatment for all. We all know how loudly and implacably this claim is put forward at school. If one cannot be the favorite oneself, at all events nobody else shall be the favorite. Freud 1956–​74[1921]: 119–​20, emphases added Obviously, Freud was focusing on the bourgeois society of his time, where many families tried to treat all their children the same way. 31 Also included are those who attack or bully somebody who is cognitively salient in some way (e.g., because she is dressed as a Goth).

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32 By “jurally expected” I mean that the frustration of the expectation would be experienced as a bodily attack or restriction. 33 By “jural duty-​holder” I understand an animate individual who is experienced as having a jural duty toward another person (right-​holder). 34 Whether this belief is correct is irrelevant. 35 Here one might mention mirror neurons, but due to space limitations I cannot discuss this issue. 36 I am chiefly following Anna Freud’s concept of identification with the aggressor (1937[1936]: 121–​2). I will also make use of the different reconstruction of this concept offered by Frankel 2002, insofar as compatible with Anna Freud’s. 37 Frankel writes that “[i]‌dentifying with the aggressor … may even [involve] shar[ing] in the pleasure that the abuser gets from hurting the [victim]” (2002: 104). This can be understood as the jural duty-​holder sharing: (1) the right-​holder’s experience of herself as the victim and thus (2) the right-​holder’s pleasure of aggressively reacting against the jural duty-holder for what the latter did to the former. 38 It suffices that this complementary identification be potential, or dispositional. 39 However, I do not know of any psychologist who expressly traces adults’ anger elicited by goal obstruction to infants’ frustration for the restriction of their bodily movements (but cf. Lewis 2010: 179 and Schultz and Schultz 2016: 221). 40 These hypotheses need to be tested through neuroimaging and other means. 41 On the blanketness of ethical emotions, see the “Petrażycki’s Ethical Emotions” section. 42 For example, the anger elicited by a murder may be turned into the jural expectation that people do not kill; a jural expectation that, in turn, may be hypostatized into the right to not be killed. 43 That most caregivers behave in this way does not mean that they all do, or can. Consider, for example, the case of a newborn placed in a neonatal intensive care—​a treatment that is inevitably experienced as a traumatic bodily attack and restriction. It should also be noted that children may learn how to exhibit their aggression by hearing how their caregivers react to bodily attacks and restrictions or appraise other people’s reactions in similar circumstances. 44 The discussion could be broadened as to include shaming, ridiculing, and expressing disgust toward others. Due to space limitations, I cannot discuss this topic here. 45 Due to space limitations, I cannot discuss inward aggression, that is, violence directed toward oneself (e.g., aggressive self-​blaming). 46 On the way “rationalization” is used here, see note 51. 47 If the anger-​eliciting behavior is an action (e.g., hurting), the object of the right might become the abstention from that action (not hurting); if it is an omission (not paying), the object of the right might become an action (paying). 48 For the sake of simplicity, I will not address the question whether we should distinguish between four kinds of rights: (1) right’s to another’s actions, (2) rights to another’s abstentions, (3) rights to one’s own actions, and (4) rights to one’s own abstentions. See, extensively, Fittipaldi (2012: 186–​97). 49 If one accepts the Petrażyckian terminology proposed here, we are dealing with “jural,” not “moralistic” aggressions. 50 By rationality, I mean a person’s ability to examine her cognitive and emotional experiences and do away with some of them due to the pressure of certain emotions that in her culture are regarded as less emotional than other ones (e.g., long-​run well-​being concerns).

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51 This is the case of Freud’s “exceptions” (1967[1916], 1956–​74[1916]). It should be stressed that my understanding of rationalization as typification differs from the way rationalization is used in psychoanalysis. However, psychoanalytical rationalization involves typification, as when an individual turns a guilt-​or a shame-​eliciting behavior into the exercise of a right (“I have the right to pee wherever I want”). In such cases, we are dealing with aggression as a defense against shame or guilt (cf., e.g., Solan 2015: 227). Needless to say, this kind of rationalizations may turn out to be completely irrational, in the sense of rationality explained in note 50. 52 See Tolmacz and Mikulincer (2011: 76, 90) for further references. On “healthy” entitlement, see also Bishop and Lane (2002:741). The terms “underentitlement” and “overentitlement” are used in Moses and Moses (1990: 67). 53 On normative idiotism, see also Chapter 6. 54 Consider the following quotations: The development of an appropriate active-​jural consciousness (the consciousness of one’s rights) is important in pedagogy [pedagogika] Petrażycki 1904: 60; 1907: 63 A healthy … consciousness [zdorovoe soznanie] of one’s rights exerts an important educative influence on the person, … it turns him into a “citizen” …, it confers upon him the sense and consciousness of his own dignity, it preserves him from the development of a defective character and behavior, which defective character and behavior involve the absence of an appropriate consciousness of one’s own dignity and self-​respect. Petrażycki 1904: 58–​9; 1907: 61 These ideas are compatible with those of psychoanalysts that link sense of entitlement with self-​esteem (see Tolmacz and Mikulincer [2011: 76], for further references). 55 Incidentally, it is also the possibility of pathological jural phenomena that makes Petrażycki’s conception of jural emotions incompatible with von Jhering’s sense of entitlement (see von Jhering 1997[1872], 1915[1872], as well as 1986[1884]; see also note 14). 56 I am referring directly to the German original. In English, see Freud (1956–​ 74[1916]: 320). 57 See, for example, this passage: “[c]‌hildren have a legitimate need, that is, an appropriate entitlement, to be paid attention to, understood by their parents” (Bishop and Lane 2002: 741, emphases added). 58 For Petrażycki this is true of right-​holders as well. 59 Athens is inspired by symbolic interactionism, that I believe is compatible both with psychoanalysis (see, e.g., Elliott and Meltzer 1981) and with Petrażyckianism (see Denzin 1975), and thus with the approach adopted here. More recently, Athens (2015) refers to his approach as “radical interactionism,” as distinct from symbolic interactionism. Radical interactionism’s stress on conflictive rather than cooperative “collective acts” is definitely suitable to a cross-​fertilization with Petrażycki’s understanding of law as the main conflict generating phenomenon in the human species (see entry “imperative-​attributive emotion,” in Glossary). 60 In later writings, Athens replaced the concept of generalized other with the concept of a phantom community, where the perspective of the phantom community is “the one we

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derive from our past significant social experiences, which may be different from those of our present corporal community members” (1997: 139, emphasis added). It goes without saying that this change makes Athens’s approach even closer to psychoanalysis (I am thinking, in particular, of the psychoanalytic concept of superego as an agency resulting from primary socialization, but amenable to modification during secondary socialization). 61 This is not to rule out that the jural emotions traceable to aggressive reactions unleashed by one’s experience (or perception) of being treated like excrement might have to be sub-​ distinguished from the jural emotions traceable to bodily attacks. If this is so, the ability to experience the former jural emotions would emerge from the caregivers’ tolerance or encouragement of aggression when one is likened to excrement. But this does not address the basic idea proposed here that jural emotions, or anger, are connected to one’s relation to one’s own body, or—​more broadly—​to oneself, whereas indignation is not. (In using “body” to also include “oneself,” or one’s Self, one should bear in mind that young children do not clearly distinguish between body and mind—​see, e.g., Piaget 1973[1926]: 49). 62 Athens’s findings could be used in studying shame cultures. Further, it would be interesting to compare the ethos of Lonnie Athens’s criminals with that of Homeric and Medieval “heroes,” as characterized, for example, by Ossowska (2007[1973]). This research is compatible with the following question raised by Athens (1997: 100): “to what extent, if at all, can the moral [i.e., jural] support that violent generalized others provide for acting violently toward other people be codified into a specific set of norms or shared rules prescribing violent conduct?” 63 Along with crucial biological differences between males and females when it comes to aggression, this can also be explained by the fact that caregivers are usually more tolerant of their sons’ aggressive drives than of those of their daughters.This is perfectly consistent with Piaget’s observation that “the juristic sense [esprit juridique] is far less developed in little girls than in boys” (1978[1932]: 53, 1997[1932]: 77). On this issue, cf. also Athens (2017: 110–​12). 64 Now, Athens (2017: 88). 65 The question of whether such “perceptions” are shared by officials, and so also make up a given “official law,” does not concern us here (see note 18). On Petrażycki’s concept of official law, see Glossary.

References Albert, Hans, 1994. Kritik der reinen Hermeneutik. Der Antirealismus und das Problem des Verstehens. Tübingen: Mohr Siebeck. Athens, Lonnie H., 1992[1989]. The Creation of Dangerous Violent Criminals. 1st ed. Urbana, IL and Chicago, IL: University of Illinois Press. Athens, Lonnie H., 1997. Violent Criminal Acts and Actors Revisited. Urbana, IL: University of Illinois Press. Athens, Lonnie H., 2015. Domination and Subjugation in Everyday Life. New Brunswick, NJ and London: Transaction Publishers. Athens, Lonnie H., 2017. The Creation of Dangerous Violent Criminals. 2nd ed. London and New York, NY: Routledge. Barbalet, Jack M., 2002. Moral Indignation, Class Inequality and Justice: An Exploration and Revision of Ranulf. Theoretical Criminology, 6(August): 279–​97. Becker, Ernest, 1973. The Denial of Death. New York, NY: The Free Press.

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Berkowitz, Leonard, 2010. Appraisals and Anger: How Complete are the Usual Appraisal Accounts of Anger. In Michael Potegal, Gerhard Stemmler, and Charles Spielberger (eds.), International Handbook of Anger: Constituent and Concomitant Biological, Psychological, and Social Processes. New York, NY: Springer. Bishop, John, and Robert C. Lane, 2002. The Dynamics and Dangers of Entitlement. Psychoanalytic Psychology, 19(4): 739–​58. Blumer, Herbert, 1956. Sociological Analysis and the “Variable”. American Sociological Review, 21: 683–​90. Cotterrell, Roger, 2015. Leon Petrażycki and Contemporary Socio-​ Legal Studies. International Journal of Law in Context, 11(1): 1–​16. Darwin, Charles, 1872. The Emotions in Man and Animals. London: John Murray. Denzin, Norman, 1975. Interaction, Law and Morality:The Contributions of Leon Petrażycki. In Jan Gorecki (ed.), Sociology and Jurisprudence of Leon Petrażycki. Urbana, IL: University of Illinois Press. De Waal, Frans, 1996. Good Natured: The Origins of Right and Wrong in Humans and Other Animals. Cambridge, MA and London: Harvard University Press. Elliott, Rodney D., and Bernard N. Meltzer, 1981. Symbolic Interactionism and Psychoanalysis: Some Convergences, Divergences, and Complementarities. Symbolic Interaction, 4(2): 225–​44. Fernandez, Ephrem, and Ajaj Wasan, 2010. The Anger of Pain Sufferers: Attributions to Agents and Appraisals of Wrongdoings. In Michael Potegal, Gerhard Stemmler, and Charles Spielberger (eds.), International Handbook of Anger: Constituent and Concomitant Biological, Psychological, and Social Processes. New York, NY: Springer. Fittipaldi, Edoardo, 2012. Everyday Legal Ontology. A Psychological and Linguistic Investigation within the Framework of Leon Petrazycki’s Theory of Law. Milan: Led. Fittipaldi, Edoardo, 2016. Leon Petrażycki’s Theory of Law. In Enrico Pattaro and Corrado Roversi (eds.), Legal Philosophy in the Twentieth Century: The Civil Law World. Dordrecht: Springer. Fittipaldi, Edoardo, 2019. Prototypizing and Archeotypizing Ownership: A Pilot Study. Sociologia del diritto, 2: 43–​62. Frankel, Jay, 2002. Exploring Ferenczi’s Concept of Identification with the Aggressor. Its Role in Trauma, Everyday Life, and the Therapeutic Relationship. Psychoanalytic Dialogues, 12(1): 101–​39. Freud, Anna, 1937[1936]. Das Ich und die Abwehrmechanismen. English translation The Ego and the Mechanisms of Defence. London: The Hogarth Press and the Institute of Psycho-​Analysis. Freud, Sigmund, 1956–​ 74[1916]. Einige Charaktertypen aus der psychoanalytischen Arbeit. English translation Some Character-​ Types Met With in Psycho-​ Analytic Work. In Sigmund Freud (James Strachey ed.), The Standard Edition of the Complete Psychological Works of Sigmund Freud. vol. 14. London: The Hogarth Press and the Institute of Psycho-​Analysis. Freud, Sigmund, 1956–​74[1921]. Massenpsychologie und Ich-​Analyse. English translation Group Psychology and the Analysis of the Ego. In Sigmund Freud (James Strachey ed.), The Standard Edition of the Complete Psychological Works of Sigmund Freud. vol. 18. London: The Hogarth Press and the Institute of Psycho-​Analysis. Freud, Sigmund, 1956–​ 74[1929]. Das Unbehagen in der Kultur. English translation Civilization and Its Discontents. In Sigmund Freud (James Strachey ed.), The Standard Edition of the Complete Psychological Works of Sigmund Freud. vol. 21. London:The Hogarth Press and the Institute of Psycho-​Analysis.

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Freud, Sigmund, 1967[1916]. Einige Charaktertypen aus der psychoanalytischen Arbeit. In Sigmund Freud (Anna Freud ed.), Gesammelte Werke. Chronologisch geordnet. Zehnter Band. Werke aus den Jahren 1913–​17. Frankfurt: S. Fischer Verlag. Horney, Karen, 1991[1950]. Neurosis and Human Growth. NewYork, NY and London: Norton & Company. Jakubowska-​Branicka, Iwona, 1986. Procesy kształtowania się przekonań i ocen moralnych dzieci i młodzieży. Warsaw: Instytut Socjologii Uniwersytet Warszawski. Lewis, Micheal, 2010. The Development of Anger. In Michael Potegal, Gerhard Stemmler, and Charles Spielberger (eds.), International Handbook of Anger: Constituent and Concomitant Biological, Psychological, and Social Processes. New York, NY: Springer. McGuire, Michael T., 1991. Moralistic Aggression and the Sense of Justice. American Behavioral Scientists, 34(3): 371–​85. Moses, Rafael, and Rena Moses, 1990. Reflections on the Sense of Entitlement. The Psychoanalytic Study of the Child, 45: 61–​78. Ossowska, Maria, 2007[1973]. Ethos rycerski i jego odmiany. German translation by Friedrich Griese, Dar ritterliche Ethos und sein Spielarten. Frankfurt: Suhrkamp Verlag. Petrażycki, Leon, 1904. O motivah čelovečeskih postupkov v osobennosti ob ėtičeskih motivah i ih raznovidnostjah. St. Petersburg: Tipografija Ė.L. Porohovščikovoj. Petrażycki, Leon, 1907. O motivah čelovecheskih postupkov, v osobennosti ob etičeskih motivah i ih raznovidostiah. German translation of an unpublished improved version of Petrażycki 1904, Über die Motive des Handelns und über das Wesen der Moral und des Rechts. Berlin: Müller. Petrażycki, Leon. 1908. Vvedenie v izučenie prava i nravstvennosti. Osnovy ėmocional’noj psihologii. 3rd ed. St. Petersburg: Ėrlih. Petrażycki, Leon, 1909–​10. Teorija prava i gosudarstva v svjazi s teoriej nravstvennosti. 2nd ed. St. Petersburg: Ekateringofskoe Pečatnoe Delo. Petrażycki, Leon, 2010[1897]. Vvedenie v nauku politiki prava. In Leon Petrażycki (Elena V. Timoshina ed.), Teorija i politika prava. Izbrannye trudy. St. Petersburg: Universitetskij Izdatel’skij konsorcium. Petrażycki, Leon, 2010[1913]. K voprosu o social’nom ideale i vozroždenii estestvennogo prava. In Leon Petrażycki (Elena Timoshina ed.), Teorija i politika prava. Izbrannye trudy. St. Petersburg: Universitetskij Izdatel’skij konsorcium. Petrażycki, Leon, 2011[1909–​ 10]. Teorija prava i gosudarstva v svjazi s teoriej nravstvennosti. 2nd ed. Abridged English translation Theory of Law and State in Connection with a Theory of Morality. In Leon Petrażycki (Nicholas S. Timasheff ed.), Law and Morality: Leon Petrażycki, with a New Introduction by A. Javier Treviño. Piscataway, NJ: Transaction Publishers. Piaget, Jean, 1973[1926]. La représentation du monde chez l’enfant. English translation, The Child’s Conception of the World. London: Paladin. Piaget, Jean, 1978[1932]. Le jugement moral chez l’enfant. Paris: Presses universitaires de France. Piaget, Jean, 1997[1932]. Le jugement moral chez l’enfant. English translation by Majorie Gabain, The Moral Judgement of the Child. New York, NY: Free Press Paperbacks. Ranulf, Svend, 1938. Moral Indignation and Middle Class Psychology: A Sociological Study. Copenhagen: Levin & Munksgaard. Rozin, Paul, Jonathan Haidt, and Clark R. McCauley, 2008. Disgust. In Michael Lewis, Jeannette M. Haviland-​Jones, and Lisa Feldman Barrett (eds.), Handbook of Emotions. 3rd ed. New York, NY: Guildford Press.

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Rudziński, Aleksander W. 1976. Petrażycki’s Significance for Contemporary Legal and Moral Theory. The American Journal of Jurisprudence, 21: 107–​30. Schultz, Duane P., and Sydney E. Schultz, 2016. A History of Modern Psychology. 11th ed. Boston, MA: Cengage Learning. Shaver, Philip, Judith Schwartz, Donald Kirson, and Cary O’Connor, 1987. Emotion Knowledge: Further Exploration of a Prototype Approach. Journal of Personality and Social Psychology, 52(6): 1061–​86. Solan, Ronnie (Ruth Shidlo ed.), 2015. The Enigma of Childhood:The Profound Impact of the First Years of Life on Adults as Couples and Parents. London: Karnac. Sorokin, Pitirim A., 1947. The Organized Group (Institution) and Law-​Norms. In Paul Sayre (ed.), Interpretations of Legal Philosophies. Essays in Honor of Roscoe Pound. New York, NY: Oxford University Press. Tolmacz, Rami, and Mario Mikulincer, 2011. The Sense of Entitlement in Romantic Relationships—​ Scale, Construction, Factor Structure, Construct Validity, and Its Associations with Attachment Orientations. Psychoanalytic Psychology, 28(1): 75–​94. Trivers, Robert L., 1971. The Evolution of Reciprocal Altruism. The Quarterly Review of Biology, 46(1): 35–​57. von Jhering, Rudolf, 1877. Der Zweck im Recht. Erster Band. Leipzig: Breitkopf & Härtel. von Jhering, Rudolf, 1913[1877]. Der Zweck im Recht. English translation Law as Means to an End. Boston: The Boston Book Company. von Jhering, Rudolf, 1915[1872]. Der Kampf ums Recht. English translation The Struggle for Law. Chicago, IL: Callaghan and Company. von Jhering, Rudolf, 1997[1872]. Der Kampf ums Recht. Berlin: Propyläen Verlag. von Jhering, Rudolf, 1986[1884]. Die Entstehung des Rechtsgefühles. Napoli: Jovene. Wranik, Tanja, and Klaus R. Scherer, 2010. Why Do I Get Angry? A Componential Appraisal Approach. In Michael Potegal, Gerhard Stemmler, and Charles Spielberger (eds.), International Handbook of Anger: Constituent and Concomitant Biological, Psychological, and Social Processes. New York, NY: Springer.

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8 LEON PETRAŻYCKI’S TWO DIMENSIONS OF LAW Jacek Maria Kurczewski*

Introduction Leon Petrażycki’s definition of law is usually identified with his theory of law. As such, it is easy to overlook that his definition is the end point of the broader topic of the psychology of emotions. Petrażycki saw “law” as all those psychical, or “imperative-​attributive,” experiences in which an individual, A, experiences the obligation to perform a certain type of behavior in relation to another individual, B, provided that that behavior is experienced (by A, B, or a third party, C) as the object of B’s right. This definition was based, first, on a thorough psychological analysis influenced by the theories of Ivan Pavlov, and second, on an original methodological and epistemological conception. This conception—​based, in turn, on Petrażycki’s own analysis of the conceptual structures of the natural and formal sciences—​propounded the principle of adequacy. This principle states that what is predicated about the phenomena selected by a given subject must hold true for all of those phenomena, devoid of gaps (in which case he described the theory as “limping”) or exceptions (in which case he described the theory as “jumping”). Petrażycki remarked that (1) traditional conceptualizations of law were unsuitable as the basis of an adequate theory of law, (2) the methodology of the legal sciences differed completely from the empirical techniques used by other sciences, and (3) law itself lacked a precise empirical foundation. Petrażycki’s psychologism can be explained by the fact that, at the time that he developed his ideas, psychology was the only human science that had adopted rigorous research methods. Petrażycki’s definition of law is found only in the first few pages of his writings on legal theory (Petrażycki 1959–​60[1909–​10], 2000[1909–​10]). Thereafter, he

DOI: 10.4324/9781351036740-11

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examines all traditional problems of legal theory from an empirical perspective. It is only at this point that we encounter Petrażycki’s most original theoretical contributions that are the following: 1. his distinctions between official and unofficial law, on the one hand, and between positive and intuitive law, on the other; 2. his theory on the emotional and educative impact of law; 3. his “policy of law” (politika prava or polityka prawa). Here I confine my comments to the first of these: Petrażycki’s two-​dimensional characterization of legal life, the official/​unofficial and the positive/​intuitive. Petrażycki defines official law as “the law applied and supported by the representatives of state authority in their line of duty” (2000[1909–​10]: 184, 1959–​ 60[1909–​10]: vol. 1, 307), while unofficial law is the negation of this characteristic. As for intuitive law, it refers to “legal experience[s]‌… without any reference to external authorities” (2000[1909–​10]: 77, 1959–​60[1909–​10]: vol. 1, 109), and positive law “consists of attributive-​imperative experience[s] where there is a reference to normative facts” (2000[1909–​10]: 381, 1959–​60[1909–​10], vol. 2, 246). These legal typologies are illustrated in Table 8.1. These two dimensions consist of four types of theoretical and empirical legal phenomena or experiences. More common is the tendency to regard legal life in unidimensional terms. Adam Podgórecki (1974), for example, contrasts official with unofficial law. Arguably, Podgórecki’s position could be regarded, on the one hand, as premised on the interaction between Petrażycki’s two original dimensions, and, on the other hand, as reflecting the problems that arise in applying the resulting four types of law to empirical research and theory.

TABLE 8.1  Petrażycki’s Four Types of Law (cf. Frieske 1975)

Law based on external facts experienced as authoritative (positive) Law based on inner convictions (intuitive)

Law recognized by the state (official)

Law not recognized by the state (unofficial)

Official positive law, e.g., law based on statutes, judicial precedents, books of authority, experienced as binding Official intuitive law, e.g., a judge empowered to decide a case according to their own sense of justice (cf. Max Weber’s Kadijustiz)

Unofficial positive law, e.g., sharīʿah law as practiced in Europe by Muslim immigrants Unofficial intuitive law, e.g., some rights and obligations in a romantic relationship

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The Reduction of Law and the Quest for an Extra-​Legal Concept of Law Social scientists and jurists frequently reduce law to phenomena that are merely a genus proximum of law. Here, I will discuss only those theoretical efforts that reduce law to a subgroup of (1) political processes, (2) normative facts (or normative sources), (3) social interactions, and (4) psychical experiences.

Political Processes Those who reduce law to political processes see legal phenomena as pertaining to the functioning of the state or any power organization with the potential to administer physical violence within a given jurisdiction. As such, legal theory becomes part of a more general theory of the state or politics. Recourse to the state is unsatisfactory as long as the state is itself viewed as a legal phenomenon, namely, as a sovereign political body with executive powers (in the sense of international law) or that exerts its powers on its own citizens (in the sense of state law). Petrażycki and Axel Hägerström have pointed out the tautological character of such reasoning. Indeed, it is a manifestation of the tendency to regard as “legal” only those phenomena that are intrinsically connected to the existence and functioning of (recognized) states, thus leaving a large part of legal phenomena outside of investigative consideration. Further, supporters of a non-​ normativist conception of states regard as legal whatever is defined in this way by those in power. This is a special case of the political approach that defines law in relation to power or physical violence. Subsuming the notion of law under that of politics conflates the two phenomena. In other words, all norms produced and/​or recognized by those in power are regarded as legal norms, and, in turn, all institutions charged with dispute resolution are legal institutions. This political approach is awkward for those who abide by the strict nomenclature that only some of those facts are called “legal,” while others are deemed “illegal,” “abuses of power,” “coups d’état,” and so on. This is why, often, supplementary criteria are added, such as the presence of written norms (thus excluding pre-​literate societies as legal societies), or only certain procedures for the creation of norms (thus excluding procedural innovations). We therefore reach the following formula: legal =​political +​x,

where x represents the aforementioned supplementary criteria (written norms, formal procedures, etc.).

Normative Facts The second type of reduction claims that legal phenomena are a special case of normative facts, where the term “normative” is understood descriptively.

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The reduction to political processes typically informs debates on “state and law,” whereas the reduction to normative facts occurs mostly in debates on the connections between law and morality. Here, the essence of law is traced to norms, which are endowed with a peculiar empirical status. This usually involves the rejection of psychological theories of meaning. Ultimately, for an empiricist, this seems to imply that legal norms, just as non-​legal norms, are cultural facts with peculiar features. That is to say, they are linguistic expressions subject to empirical investigation in the same way as all other linguistic phenomena. This similarity becomes more intriguing if psychological experiences of a normative character accompany the linguistic expressions—​a conceptualization that parallels the distinction between la langue and la parole. However, for the normativist reduction (legal =​normative fact +​x) to become plausible, a precise representation for x is needed. Some of these representations have a political character as in the case where law is understood as the set of norms enacted and accepted by those in power in a given jurisdiction.

Social Interactions Less frequently, legal phenomena are reduced to interaction processes between individuals and groups. Studies of legal interactions consider the interactant’s subjective or cultural meaning, as conjectured or empirically ascertained. Further, since social interaction processes characterize political phenomena, their reduction to political processes discussed above, can be further reduced to a sub-​type of the reduction of law to social interactions. However, it is necessary to distinguish political reductions from social interaction reductions in general because there are socio-​legal conceptions that regard the absence of power, or coercion, as the essential characteristic of law. This was the case, for example, with Malinowski’s conceptualization of law, which was based not on coercion but on reciprocity. As such, socio-​legal theories are concerned not only with the relations between those who are in power (i.e., those who have recourse to coercion) and those who are not but also with the interactions between individuals who are on equal footing. This, in turn, makes it easier to analyze sociologically different legal domains such as international law and the law of societies without state or public authorities (Kurczewski 1973). However, since in the formula law =​interactions +​x many alternatives for x are possible, we end up with as many subjects of investigation as there are alternatives.

Psychical Experiences The foregoing also applies to the fourth kind of reduction according to which legal experiences are a particular type of psychological experience. In this case, legal phenomena are identified by a psychological conception of meaning that treats normative expressions as scientifically verifiable facts. This is accomplished

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by investigating the actual experiences of those who send or receive a given norm (understood as a linguistic phenomenon). These considerations hold only if the cultural conception of meaning is accepted.1 Even if we agree that a given meaning is arrived at through the hermeneutic norms that are experienced as binding within a certain group, in the final analysis, we must still refer to the knowledge each individual has of those norms, as well as to each individual’s competence in producing meaningful linguistic expressions in a given language. Discourse about law and the relevant social interactions always presupposes a given meaning to actions that rests on assumptions concerning the experiences of those who participate in the interactions in question. Indeed, even the empirical analysis of political phenomena must necessarily refer to such psychical experiences as individuals’ goals, motives, or needs. In other words, psychological concepts are indispensable in investigating such social facts as human communication, political life, interactions, and interindividual adjustments.

An Adequate Theory of Law It is not sufficient to claim that law is a sociological and psychological fact to demonstrate that it deserves its own theory. In this regard, Petrażycki, through his principle of adequacy, concluded that a definition of law that encompasses all the phenomena usually called law or legal would not single out a class of facts to be used in formulating an adequate (i.e., encompassing all and only those facts that fit) theory of law. Interestingly, Maria Ossowska (2004[1947]) arrived at the same conclusion at the end of her work on morality. However, Petrażycki and Ossowska reacted differently to this discovery. In subsequent works, Ossowska relied only on partial definitions of morality and refrained from proposing a stipulative meaning for the term. In contrast, guided by the principle of adequacy, Petrażycki proposed a new stipulative conceptualization of legal phenomena as imperative-​attributive ethical emotions. Then, he claimed that a class of such phenomena can be the object of an adequate theory of law. While Ossowska’s refusal to grapple with the nature of morality irritated some scholars, Petrażycki’s imperative-​attributive characteristic of law was rejected by jurists who employed a historically conditioned perspective. In what follows I examine the logical arguments of the criticisms made against Petrażycki’s definition of law and his principle of adequacy—​a principle the requirements of which he believed his definition of law was able to meet. The arguments are the following: 1. the principle of adequacy cannot be applied to the sciences—​not even partially or approximately; 2. this principle leads to results other than or incompatible with those pursued by its supporters; 3. defining law as a subclass of ethical experiences prevents the formulation of an adequate legal theory;

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4. other definitions of law meet equally well, or better, the requirements of the principle of adequacy; 5. Petrażycki’s imperative-​attributive characterization is not precise enough to permit the development of research on law. To be sure, partial definitions have been proposed not only for morality but also for law. For example, Max Gluckman, perhaps tired of terminological disputes, made the following observation: It seems obvious to me that to deal with these problems we should take advantage of the riches of the English language, and specialize a range of words to cover the different types of facts and problems involved in th[e]‌ field of law. Each of these words, indeed, like “law” itself, may be ambiguous; but by agreement and convention we should be able to achieve this specialization. Then we shall be able to proceed with our analysis of the facts to which we have agreed to apply the words. Gluckman 1965: 182 It is noteworthy that Ossowska relied on identical considerations in conducting her research on the social history of morality. However, partial definitions are prone to the same shortcomings as those that unconsciously ascribe different meanings to the same term, thus making it difficult to assess the domain to which a certain theory is intended to apply. To be sure, even Petrażycki’s concept of law can be regarded as a partial definition of law and, if understood in this way, his proposal might become more palatable for legal theorists. However, my intention here is not to defend Petrażycki’s conceptualization of law as the only useful and scientific one. Rather, I propose to examine how the concepts he formulated can shed light on legal theory. The intensity of the debates over the term law is due not only to competing professional traditions but perhaps also to different normative premises. When social scientists endeavor to define law, they should dissociate themselves from their culturally informed determination of what is and is not regarded as valid law; a determination that is made in accordance with special procedures only in certain historical periods and limited to certain societies. Validity is not an empirical fact that can be contrasted with one’s opinion about the validity of certain norms. However, because validity is relative, an operational definition of it is needed in order to compare different times and places. Once again, an extra-​ legal definition of legality is required (Kurczewski 1977). Legal phenomena will be encountered even outside those social domains with which legal theorists have traditionally concerned themselves. This is why empirical studies deal with the “legal” order of organized criminal groups, families, workers’ collectives, and pre-​state societies.

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The Distinction between Official and Unofficial Law Let us now address the first of Petrażycki’s two distinctions, that between official and unofficial law. Though conceptualized differently, similar distinctions were made by other scholars. For example, there is Eugen Ehrlich’s “living law,” and his ambiguous notion of “customary law” (Gewohnheitsrecht)—​a term that Ehrlich often uses in the sense of Petrażycki’s unofficial law. Similar concepts can be found in the article Karl Marx wrote for the Rheinische Zeitung in 1842, “Debates on the Law on the Theft of Wood.” In examining various bills aimed at criminalizing the pilfering of wood in the Rhenish forests, Marx noted that the various consequences of customs depend on whether they pertain to the privileged or to the unprivileged classes of society. If the interests of the elite are represented in laws, a contrasting customary law of the poor must necessarily come into existence. Sometimes a custom gets embodied in a socially just law, and so keeps existing under the form of a legal provision. When a socially just norm conflicts with the law (i.e., when official law is socially unjust), the poor refer to that norm as their customary law. Underlying all this is social conflict, which is one of the most important causes that determine the difference between official and unofficial law. Indeed, many scholars use the terms “custom,” “customary law,” and “customary rights” to refer to social tensions of this sort. In legal ethnography, the idea of legal levels is today gaining popularity.2 This idea, that first found its most explicit expression in Leopold Pospíšil (1971: 97–​ 126), seems closely connected to the official—​unofficial distinction. Among other things, Pospíšil holds that “[a]‌ny human society … does not possess a single consistent legal system, but as many such systems as there are functioning subgroups” (98). In addition, he contends that neglecting this fact led to the “misleading impression of a ‘monolithic society’ ” (ibid.), an impression that turns out to be the point of departure of most ethnographic studies. Pospíšil conducted an in-​depth study of the multiple legal systems existing among the Kapauku Papuans. This was an analysis supplemented by his reinterpretation of data obtained from other traditional societies as well as by cursory observations on the multiplicity of legal levels in such state societies as China and the United States. Thus, he came to the conclusion that: This multiplicity of legal systems, whose legal provisions necessarily differ from one to another, sometimes even to the point of contradiction, reflects precisely the pattern of the subgroups of the society—​what I have termed “societal structure” (structure of society). Thus, according to the inclusiveness and types of the pertinent groups, legal systems can be viewed as belonging to different legal levels that are superimposed one upon the other, the system of a more inclusive group being applied to members of all its constituent subgroups. As a consequence, an individual is usually exposed

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to several legal systems simultaneously—​to be exact, to as many systems as there are subgroups of which he is member. Pospíšil 1971: 125 Just as Pospíšil traces his theory’s origin to Ehrlich and finds its foreshadowing in the work of Otto von Gierke, it was Grotius who had previously identified three kinds of “human law” (ius humanum): this … is either a civil [law], or a [law] more or less extensive than civil [law]. … The less extensive [law], and not derived from the civil power itself, although subject to it, is various, comprehending the authority of fathers over children, masters over servants, and the like … [T]‌he law of nations is a more extensive [law]. Grotius 1913[1646]: § 1.14: 253 On the other hand, many years ahead of Ehrlich, Petrażycki irritated his contemporaries by proposing that law4 included the rules practiced by children, card players (including the so-​called constitutive rules of their games), criminals, and families. It is necessary to examine the objections that arise from such a proposal. These objections have been aptly listed by Jean Carbonnier when discussing legal pluralism, which was a notion championed by Petrażycki’s pupil Georges Gurvitch. Carbonnier contends that we face the following binary choice: Either the phenomena depicted as constituting a different law are taken into account by the universal [global] legal system, that is, they are connected to it, are integrated in it in a certain fashion, and unity is restored through this universal system that takes on that whole [assume l’ensemble]; or the phenomena of that purportedly other law remain outside, non-​integrated in the system, in a wild state, and cannot be genuinely [veritablement] qualified as law; at most they can be qualified as sub-​law [sous-​droit]. Carbonnier 2016[1978]: 360–​1. Emphasis in original These claims reveal some of the most intricate quandaries of legal theory, namely, the various conceptions regarding the nature of power and of the state’s production or recognition of normative facts. Normativists used to claim that, whenever a given state approves (or disapproves) of a normative fact,5 it subsequently includes (or, respectively, excludes) it inside (or, respectively, from) that state’s legal order. Some normativists contend that all facts that the state does not expressly consider through its laws are to be regarded as tacitly approved. Hermann Kantorowicz, though, remarked that,

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It is true that church-​made and customary law have been “tolerated,” though by no means always, by the State, as the adherents of the State theory point out, but this observation needs no discussion—​it would be equally reasonable to argue that every language spoken or every melody sung in the British Commonwealth originates from Whitehall or Westminster. Kantorowicz 2015[1958]: 15 Behaviorists, by contrast, contend that we confront law only when certain rights or obligations are actually enforced, applied, or recognized through the behavior of state officials. Each of these approaches leads to different practical outcomes, and a relativist may correctly conclude that the answers depend on the particular approaches adopted. According to an orthodox interpretation of Petrażycki’s theory, a norm is part of a state’s legal order when it is experienced as approved by the state. But experienced by whom, exactly? From a strict psychologistic standpoint, the answer is that whenever I experience an obligation or a right as imposed on me or, respectively, attributed to me by the state, I, qua observer, am confronting a legal phenomenon belonging to the domain of official law. Likewise, we should regard as official (i.e., state) legal phenomena all those actions carried out by police officers as long as they believe that they are acting as state officials and not—​albeit in the line of duty—​for personal reasons, or reasons of group membership. As long we don’t leave the domain of personal experiences, this approach makes sense. However, this interpretation of Petrażycki’s theory leaves a few issues unresolved. Within a socialized psyche two laws may exist in opposition to each other. In other words, a conflict between official and unofficial law may take place in the psyche of the same individual. I may experience that the state has imposed on me an obligation and that it has the right to do so, and, at the same time, I may experience myself as bound by an obligation of loyalty to a friend. This “legal dissonance” will be resolved one way or another, depending on the circumstances, as shown by research on the juristic mentality. Thus, we encounter the classical surveys on legal consciousness (e.g., Podgórecki et al. 1973), which usually include at least one question in which the respondent is required to choose between their loyalty to the law (which is to say, state law, or official law—​in Petrażycki’s terms) and their loyalty to other norms (her conscience). Such surveys revealed remarkable differences, which are to some extent independent of the nationality of the population surveyed. Generally, those at the top, more so than the underdogs, tend to support official law (Podgórecki 1974: 95). From these studies, it also follows that in certain countries, official law is widespread. Moreover, it is more widespread at higher social levels (it should be borne in mind that the degree of participation in the decision-​making process may act as an intervening variable). I intentionally say “more widespread” rather

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than “accepted” or “more widely accepted” to highlight the true meaning of the phrase “law’s existence” in Petrażycki’s theory. Unfortunately, the data have some shortcomings. For example, they don’t identify the experiences against which—​ based on Petrażycki’s theory—​official legal experiences are contrasted. Are they to be contrasted with unofficial legal experiences, or with what Petrażycki calls “moral experience” (i.e., an obligation experienced without a correlative right belonging to another person)? Nevertheless, these data confirm the common-​ sense notion that official law has a tighter grip on those who are closer to the state, either due to their direct or indirect participation in the decision-​making processes, or to their being public officials (e.g., police officers, judges), or, finally, owing to some sort of ideological identification. Along these lines, I have shown that the distinction between official and unofficial law can be maintained without abandoning the domain of psychical experiences, to which Petrażycki anchored his concept of law. We now turn to the issue of whether there are empirical considerations that force us to abandon a psychological approach. Psychical experiences cannot be observed directly. What can be observed are human actions that are closely connected to their perceptible consequences—​if any. In these cases, we almost always ascribe intentions or other internal states to the actors involved in those actions. This is why we tend to apply the term “official law” to the intentional actions of state officials rather than to their internal experiences, or to the individuals interacting with the officials. While Petrażycki was certainly aware of these problems (cf. 1959[1908], § 16: 430–​2), he did not pay much attention to interactions, as he was chiefly interested in psychology, and social psychology fields during his time were poorly developed.6 It is now necessary to introduce another type of legal phenomenon into Petrażycki’s conceptual scheme: the “legal actions” that consist of intentionally fulfilling an obligation or exerting a right (Kurczewski 1977). As such, sanctions, as well as the procedures shaping their imposition, may be regarded as “legal actions” performed by state officials exerting their right to encroach upon citizens’ behavior (e.g., the so-​called ius puniendi). Citizens, too, perform legal actions when they engage in behaviors that reflect the intentional fulfillment of legal obligations imposed on them. This is how a legal relation comes into being. It is, however, an asymmetric one if a given action—​motivated by a corresponding legal consciousness—​is carried out by only one of the interacting parties. In contrast, a symmetric legal relation occurs when both legal actions are performed (e.g., if a slave serves his master and the master accepts the slave’s services, or, in the case of easement, if the holder of a right of way walks on it and the duty-​holder uncomplainingly tolerates that behavior). This goes far beyond power relations, given that legal actions, and thus legal relations as well, are ubiquitous everyday occurrences. Thus, official law, like other kinds of law, remains in a latent state as long as it exists only at the level of a legal-​psychological experience. However, official law is actualized when a corresponding official legal action takes place.

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As expected, the same holds for unofficial law given that, for whatever reason, people do not always exert their unofficial rights or fulfill their unofficial obligations. Unofficial law might actualize itself at a different time, as for example, when the state’s control over the behavior of its own citizens slackens. Thus, the distinction between potential and actual law is empirically relevant as it makes it possible to interpret, in context, the behaviors of given individuals or social groups. At this point, it is worth considering Petrażycki’s distinction between the moral experience of an obligation, where no correlative right is experienced, from the legal experience, where a correlative right is experienced. Arguably, a third type of experience may be added, namely, that of a right with no correlative obligation. As an example, consider the soldier who feels he has (i.e., experiences) the right to fight the enemy without also thinking that the enemy has the correlative obligation to surrender or be killed. These purely attributive experiences may be called “power experiences” because the right, or power, to freely do something constitutes our normative experience, which is nothing more than our sense of being entitled to use our power to achieve a goal of performing a given action. Thus, when it comes to political phenomena, we must distinguish power actions, which result from the power experiences of certain members in a social group, from legal actions, which usually take place once a given social system has become stable. The situation, though, varies depending on whether the official legal relation is an asymmetric or a symmetric one, as well as on whether a given power is experienced by its subjects as a legitimate authority. It is only when these conditions are met that we can speak of an “official legal community.” Returning to Pospíšil, his idea of multiple legal levels is rather ambiguous. As far as such legal communities as states are concerned, it is necessary to distinguish their different levels of organization from the different legal communities that exist within them. In the first case, we find a multi-​level official legal system made up of psychological factors prompting individuals to engage in mutually coordinated social actions, which in turn may constitute a sociological phenomenon such as a properly functioning state. In the second case, we face the coexistence or the conflict between official and unofficial law (depending on whether or not the content of official law is compatible with that of unofficial law). Further complications arise when empirical inquiries are made into the legal life of a particular social group or a round of social activities. The term “official” need not refer exclusively to state organizations. It can also refer to power organizations with the most diverse forms and structures—​particularly considering that different official legal systems can coexist in polycentric political structures. This is also the case in monocentric systems, including the most homogenous ones. For example, in a study carried out by Kazimierz Frieske and me (1977) on nationalized industries in Poland, we considered three legal systems (in a sociological sense). Even though industries were hierarchically organized—​and so, from a legal-​dogmatic standpoint, they were subject to the state authority—​sociologically, we could distinguish between:

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1. the official law applied by the state administration of justice; 2. the official law applied by the state agencies overseeing those industries (which create their own norms, while neglecting to enforce or reinterpreting other ones); and 3. the unofficial law that emerges from the interactions between the managers of the various industrial enterprises (which involves moral sanctions, such as a manager not accepting another manager’s purchase agreement the following year, should the latter manager cause trouble for the former by not accepting the shipment of substandard goods he sent him). It should be added that the unofficial law, despite involving some patently illegal (illegal from the viewpoint of the two aforementioned official systems) practices concerning the participants’ rights and duties, did contribute to the general objectives of the Polish socialist economy, given that it alleviated the impediments stemming from the excessively rigid and detailed official regulations. This resulted not only in substantial advantages but also in some disadvantages, such as a self-​ interested or criminal exploitation stemming from cooperation between managers (ibid.). In the face of such complexity, we have to tackle the question of the usefulness of the distinction between official and unofficial law. As pointed out by Jean Carbonnier, “[t]‌here is no question of challenging the somewhat stimulating character of [legal] pluralism, and the usefulness of its critical function in regard to an excessively unitary conception of law” (2016[1978]: 360). But there are further arguments in favor of the distinction between official and unofficial law. First, such a contrast is able to somewhat capture an aspect of the legal life of social systems. Second, it provides a useful theoretical guide for empirical research, as well as an explanation of differences between legal phenomena. The fact that researchers have long been concerned exclusively with the state legal order is not only due to professional bias but also (and foremost) by the various power potentials of the different legal systems. Given that states are centralized power organizations equipped with operative means, these legal systems are particularly suited to impose on their citizens legal relations—​albeit often only asymmetric ones (in the above-​defined sense).Those with access to the state apparatus can turn into official and effective law their own legal programs (which may have so far been relegated to the domain of unofficial potential law). This is why access to state power has been so important in the legal history of society.

The Distinction between Positive and Intuitive Law In order to highlight the importance of Petrażycki’s second distinction—​that between positive and intuitive law—​I now turn to Jane F. Collier’s Law and Social Change in Zinacantan (1973).7 The author’s point of departure is a conceptualization of law borrowed from Michael Barkun, who sees law as a language for

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conducting and resolving conflicts. Collier sums up the developments of post-​war legal ethnography as follows: Out of these studies came the idea that law was a language—​a set of rules or a set of ideas about the nature of social order—​through which decisions had to be rationalized; and that there was another set of factors, to be located by studying social organization, that would account for the particular decisions chosen by judges from among the set of those that could be justified. Collier 1973: 246 She goes on to observe that those “studies were concerned primarily with how outcomes were determined rather than with the claims advanced by litigants” (247–​8), but also that the question of litigant motives could not be avoided indefinitely because any serious attempt to understand how stated rules affect actual social relationships demands consideration of how trouble cases come to the attention of the authorities. Collier 1973: 248 Collier’s study of the legal life of the Zinacantán Indians rests on a triadic scheme: institutions, language, claims. Here, I focus on language in order to address the linguistic conception of law expounded in her book. My criticism concerns the fact that Collier uses the term language rather broadly and perhaps even metaphorically. She draws no distinction between “language” and “concepts.” In the very same page, she holds that law is both a language and a conceptual system (Collier 1973: 257). The result is that, when she applies the linguistic conception of law to concrete situations in Zinacantán, she ends up discussing the prevailing legal concepts among the inhabitants of that town (chs. 4–​7, and 257–​61). Those concepts are defined as “the set of assumptions about the nature of social and cosmic order used to justify claims and decisions” (258). Legal language as such is confined to Chapter 4 (91–​108), not extensively, if one considers her initial premises. In that chapter, she presents Zinacanteco legal terminology—​a simple one, after all—​along with corresponding translations. Thus, most of the work is devoted to the analysis of the concepts used in the legal life of the people under study. This summary of Collier’s book is sufficient to highlight the shortcomings involved in her usage of the term “language.” She claims that law is a language, but this assertion is ambiguous given that she does not specify what she means by language. Further, she states that: “Law as a language must be conceptually separated from observed behavior, if we are to study the relationship between the two” (Collier 1973: 257). In this statement, or axiom, we can also trace an incorrect usage of terms, which makes it difficult to understand their meaning. How can this statement be reconciled with the broadly held view that “[t]‌he sociology of

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language examines the interaction between … two aspects of human behavior: the use of language and the social organization of behavior” (Fishman 1972: 1, emphasis added)? Obviously, in this classic text on language, as in many others, language is treated as a type of human behavior, not as something other than human behavior. According to a scientific conception commonly accepted by linguists, a language is (1) made up of sounds, or phonemes, combined into higher levels of organization, such as words, which in turn, are dealt with by morphology, syntax, and so on8 and (2) a type of behavior. In light of these considerations, Collier’s book—​ excellent in other respects—​should be reinterpreted by means of a more rigorous terminology and this should be made, too, in reference to her theoretical premises. Turning to these premises, Collier seems to hold that law is, first and foremost, a set of concepts concerned with settling disputes. In particular, she defines legal procedure “as a recognized, recurring set of actions in which the parties to a dispute come together for the purpose of discussing their conflict and attempting to resolve it by settling on some plan of future action” (1973: 19). This is indeed a stipulative definition as—​despite her not defining the term dispute—​it is formulated by the theoretician herself independently of the local languages. She is keen to emphasize that, whenever types of social action are studied, one should consider the concepts used by all the participants involved in the action and not only by those who decide the dispute. Indeed, the language used by participants during a given course of action (the action discourse, to use Grace Wales Shugar’s terminology9), or, at least, the language used to speak of that action (the topical discourse, according to Shugar) provides important clues to understanding the conceptual systems shared by all the participants. For a long time, sociologists doing research on knowledge and opinion about law (KOL) have not only investigated the motivations and opinions of the participants in legal procedures, but also those of the public commenting on those procedures. To be sure, the central issue addressed by Collier had already appeared in Thurman W. Arnold’s The Symbols of Government (1962), where he writes: The thing which we reverently call “Law” … can only be properly described as an attitude or way of thinking about government … “Law” is primarily a great reservoir of emotionally important social symbols. Arnold 1962: 33–​4 Thus, Arnold compares law to language with the goal of treating law as though it were a language. What we have here is a metaphor—​the metaphor law is language—​that refers to linguistics, a science that certain scholars regard as a model of development to be adopted by other fields in the humanities. In this regard, one should be mindful of Lévi-​Strauss (1963), who—​in discussing the application of linguistic methods in the anthropology of kinship groups—​cautioned that “[l]‌inguistics teaches … that structural analysis cannot be applied to words directly, but only to words previously broken down into phonemes” (36), and that “[t]here are no necessary relationships at a vocabulary level” (ibid., emphasis in the original).

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According to him, “[t]his applies to all vocabulary elements, including kinship terms” (ibid.). Thus, he concluded that: The individuals or classes of individuals who employ these terms feel (or do not feel, as the case may be) bound by prescribed behavior in their relations with one another, such as respect or familiarity, rights or obligations, and affection or hostility. Thus, along with what we propose to call the system of terminology (which, strictly speaking, constitutes the vocabulary system), there is another system, both psychological and social in nature, which we shall call the system of attitudes. Lévi-​Strauss 1963: 37 And it is to those systems of attitudes, especially “those attitudes which are stylized, prescribed, and sanctioned by taboos or privileges and expressed through a fixed ritual” (38) that Lévi-​Strauss attempts to transpose the method of structural linguistics in order to discover the laws of kinship structures. Further, his distinction between stylized attitudes, on the one hand, and “diffuse, uncrystallized, and non-​ institutionalized attitudes,” on the other, is quite similar to the distinction between the juristic, or legal-​dogmatic, conception of law and the sociological one. We could potentially agree with some of Collier’s ideas, provided that the term “language” be replaced by the term “concepts” (in the plural). Because we want to avoid the controversy over the “meaning of meaning,” we will abstain from using terms like “word,” “concept,” and “meaning.” Thus, it seems fair to say that Collier’s concepts are nothing more than beliefs and opinions, or what sociologists used to call “attitudes.” Now, if we view law as a system of attitudes (and now one should ask: Which attitudes? or Attitudes toward what?) we inevitably come close to a conception of law similar to Petrażycki’s imperative-​attributive experiences. Petrażycki conceives of law as a special type of psychical state. When thoroughly analyzed, conceptions à la Collier lend themselves to the same kind of definition. The difference is that Collier uses the term “legal” to refer to beliefs involved in dispute resolutions, whereas Petrażycki uses that term to refer to all psychical experiences connecting in a correlative way a given individual’s obligation to another’s right (including those experiences where there is no dispute). Therefore, as long as no further sociological qualifications are introduced, both these conceptions should be regarded as psychological theories of law. But there is another element that continually arises in legal thought: symbols. We have already encountered them when discussing Arnold’s conceptualization of law.The term “symbol” allows for the inclusion of a larger number of “social” facts into a prima facie psychological theory of law, thus making it possible to formulate the concept of positive law. To be sure, Petrażycki himself was somewhat inconsistent on the issue. On the one hand, he defines as a “positive legal experience” any psychical experience in which an external fact is experienced as a justification for a right or an obligation.

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On the other hand, he contrasts intuitive law with positive law and argues that the latter is more stable and homogenous than the former because of its reference to external criteria. Thus, he seems to take both a subjective and an objective approach to law. The objective approach prevails when he writes that positive law can be established by referring to external facts, and can therefore be experienced similarly by multiple individuals, whereas a subjective one surfaces when he states that intuitive law varies from individual to individual depending on their personal situations and characteristics. According to this interpretation, positive law should be understood as nothing more than law objectified in some form. With reference to this, Petrażycki lists (inter alia) statutes, the recurring behaviors of multiple individuals (which he calls “custom”), judicial precedents, and directives formulated by religious or moral authorities. According to Petrażycki, positive norms are usually unavailable and unknown to most people. Thus, he held that, the essential truth of the matter is that the factual basis [faktičeskaja osnova] of the social “legal order” and the real hub [ryčag] of … socio-​legal life is not positive law but rather intuitive law. It is only in the exceptional, pathological cases of conflicts, violations, etc., that it comes to the application of positive law. However, in some domains, chiefly in the domain of official state relations [oficial’no-​gosudarstvennye otnošenija], in the domain of state adjudication, administration, etc., a fundamental and a crucial or exclusively decisive role is played by positive law. Petrażycki 2000[1909–​10]: 388; Petrażycki 1959–​60[1909–​10], vol. 2: 260–​1 These and similar statements clarify the concept of legal consciousness in a way that is compatible with Petrażycki’s theory. Different levels can be traced within the legal consciousness of an individual living in a modern society, and these levels play different roles depending on the circumstances. Some legal emotions are “conditioned,” in that they depend on the individual’s perception of various facts in the environment. Thus, certain experiences of rights and obligations may be prompted by the behaviors of certain others, by the content of texts published by state authorities, by the teachings of the Catholic Church, and so on. All this makes up the positive part, or level, of legal consciousness. This part is shared with those who are affected by the same pieces of information. The other level is experienced as spontaneous: rights and obligations are experienced as self-​evident and are accepted without external justification. This is what constitutes the intuitive level of legal consciousness. Petrażycki holds that it is this intuitive or spontaneous part that influences the average behavior of the average citizen. According to this view, the seeming dominance of the official legal order is not due to its enforcement but rather to the fact that the norms of official law—​more precisely, those that are addressed to the general public—​usually substantially conform to

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intuitive law. This assertion is illustrated with the example of incest: incest is rare, not because it is prohibited by criminal law, but because a corresponding prohibition exists within the intuitive law of most of the population. It therefore follows that positive and intuitive law, just like official and unofficial law, can either remain in a potential state or manifest themselves through human actions. Moreover, while in certain times and places unofficial positive law might be almost completely reduced to official positive law, in no case can unofficial intuitive law be reduced to official law. It is, however, an open question whether official law can be reduced to intuitive law. As for intuitive official law, one could ask whether it exists at all. Among the examples given by Petrażycki, we should recall the law applied and supported by the Court of Chancery in England (Petrażycki 2000[1909–​10]: 486; 1959–​60[1909–​10])—​at least until that court began to refer to its own precedents, and so initiated the positivization of equity law (487 and 457, respectively). An example of a provision aimed at encouraging judges to draw on their own intuitive law is found in Article 1 of the Swiss Civil Code. According to this provision, in the absence of a statutory provision and of a custom to decide a given case, the judge should decide in accordance with the rule that he or she would enact as legislator.Thus, the social existence of law consists of actions motivated by relevant legal experiences. Its cultural existence, however, could be regarded as the potential of the members in a given legal community to interpret facts (and their contents) as normative facts.The acting community and the interpreting community need not necessarily coincide: both the thief and the police officer know that theft is prohibited by the criminal code. We can substitute the metaphor “law is a symbol” with studies on the “symbols for law.” During law’s positivization, norms for the correct interpretation of external facts symbolizing specific legal relations are created.These norms take the form of a sophisticated theory of interpretation, as is the case when professional jurists are concerned with official law. This notwithstanding, even when customs are experienced as binding normative facts, the rulings made by a tribal court, a commercial court, or a wise village elder, still presuppose some sort of theory for their interpretation—​however, implicit that theory may be. Despite the utility of legal texts—​especially when the same statute is adopted by people scattered in space and time across generations and regions—​they do not exhaust the number of possible symbols. Indeed, Petrażycki’s ideas on law’s positivization can be compared to Max Weber’s concept of the rationalization of law. On the other hand, a symbol, even when written, is devoid of meaning if it is not associated with some criterion of interpretation accepted by the legal culture in question. I used the term “dimensions of law” to refer to the two distinctions introduced by Petrażycki’s theory.This usage seems justified in differentiating between official and unofficial law. As for the positive and intuitive aspects of legal experiences, legal actions, and legal relations, they will increasingly become the objects of research. Normative facts, or law’s symbols,10 may or may be not immediately

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perceptible,11 their meaning may or may not be affected by the additional intuitive interpretations of legal actors. The positivization of a given norm can be investigated historically. This is why simply contrasting official with unofficial law provides only an approximate representation of legal reality. Its practical usefulness is that it makes it possible to compare on the same level (that of their normative facts, or symbols) different legal systems, whether official or unofficial, provided that they possess some degree of positivization. On this basis, it will be possible to examine systematically—​at least from this specific viewpoint—​contractual norms, the norms of criminal gangs, the norms of games, and the norms derived from official state laws. How normative facts were interpreted, their effects upon legal socialization, and the like, might turn out to be the same for phenomena as diverse as the aforementioned. On the other hand, those phenomena must be distinguished from intuitive legal thought, even though intuitive legal thought is greatly influenced by them.

Notes * Translation from Italian by Edoardo Fittipaldi of an article first published in Sociologia del Diritto, 1 (1976), pp. 29–​46, with the title Due dimensioni del diritto: diritto positivo o intuitivo e diritto ufficiale o non ufficiale. Alcune osservazioni sulla teoria del diritto di Leon Petrażycki. 1 The cultural theory of meaning has a long tradition starting with Bronislaw Malinowski and is linked to the concept of culture as the complex of meanings and semantic aspects to be found in a given society. 2 It should be borne in mind that this text was published in the 1970s. (Translator’s note.) 3 This translation is adapted from Grotius (1913[1646]: § 1.14, 6–​7). I have substituted law for right in order to translate the Latin term ius, and fathers for parents in order to translate the term patria. Here is the Latin original: est … hoc [i.e., ius] vel civile, vel latius patens, vel arctius. … Ius arctius patens et ab ipsa potestate civili non veniens, quanquam ei subditum, varium est, praecepta patria, dominica; et si qua sunt similia in se continens. Latius … patens est jus Gentium. Grotius (1913[1646]: § 1.14, 6–7) 4 In order to avoid misunderstandings, it should be underscored that the Russian and Polish terms for “law”—​pravo and prawo, respectively—​just as the German and Romance terms Recht, droit, derecho, etc. (as well as the Latin ius in its postclassical usage) can be used to mean both law and right/​entitlement. It was because of this latter meaning that Petrażycki chose the terms pravo/​prawo to refer to imperative-​attributive phenomena. (Translator’s note.) 5 The author intentionally uses a non-​positivist terminology here. (Translator’s note.) 6 On Petrażycki’s conception of sociology, see Chapter 5, in this volume. (Translator’s note.) 7 In the original title, Zinancantán is without stress on the a. (Translator’s note.) 8 The author is obviously referring to the double articulation thesis of the French linguist André Martinet. (Translator’s note.)

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9 See, e.g., Shugar (1982). (Translator’s note.) 10 Elsewhere (1977: 103) Kurczewski argued all normative facts identified by Petrażycki have in common a symbolic nature in the sense that in order for a fact to play the role of a normative fact within a person’s psyche, that person must be able to extract (izvlekat’) from it a model (šablon) of behavior. Both the verb izvlekat’ and the noun šablon are used by Petrażycki precisely in this context. (Translator’s note.) 11 The author means that certain normative facts are available to immediate perception (for instance, a contract I have just signed and have in my hands), but others are not. In this latter case, they are merely objects of realistic representations (on this concept, see the Glossary). For instance, I cannot perceive an oral command a king issued a century ago. Based on the reports, I can only believe that that king uttered those words. (Translator’s note.)

References Arnold, Thurman W., 1962. The Symbols of Government. San Diego, CA: Harcourt, Brace & World. Carbonnier, Jean, 2016[1978]. Sociologie juridique. Paris: Presses universitaires de France. Collier, Jane F., 1973. Law and Social Change in Zinacantan. Stanford, CA: Stanford University Press. Fishman, Joshua A., 1972. The Sociology of Language. In Answar S. Deal (ed.) Language in Sociocultural Change. Essays by Joshua A. Fishman. Stanford, CA: Stanford University Press. Frieske, Kaziemierz W., 1975. Leona Petrażyckiego teoria czy sociologia prawa? In Jacek Kurczewski (ed.) Prawo w społeczestwie. Warsaw: PWN. Gluckman, Max, 1965. Politics, Law and Ritual in Tribal Society. Oxford: Basil Blackwell. Grotius, Hugo (James Brown Scott ed.), 1913[1646]. De Jure Belli ac Pacis Libri Tres, in quibus Jus Naturae & Gentium, item Juris praecipua explicantur. Washington, DC: Carnegie Institution of Washington. Kantorowicz, Hermann (Archibald C. Campbell ed.), 2015[1958]. The Definition of Law. Cambridge: Cambridge University Press. Kurczewski, Jacek, 1977. Badanie prawa w naukach społecznych. Warsaw: Wydawnictwa Uniwersytetu Warszawskiego. Kurczewski, Jacek, 1973. Prawo prymitywne: zjawiska prawne w społeczeństwach przedpaństwowych. Warsaw: Wiedza Powszechna. Kurczewski, Jacek, and Kazimierz Frieske, 1977. Some Problems in the Legal Regulation of the Activities of Economic Institutions. Law & Society Review, 11, 3: 489–​505. Lévi-​ Strauss, Claude, 1963. Structural Anthropology. Translation from French by Claire Jacobson and Brooke Grundfest Schoepf. New York, NY: Basic Books. Ossowska, Maria, 2004[1947]. Podstawy nauki o moralności. Warsaw: De Agostini and Altaya. Petrażycki, Leon (Jerzy Lande ed.), 1959[1908]. Vvedenie v izučenie prava i nravstvennosti. Osnovy ėmociolnal’noj psihologii. Polish translation Wtęp do nauki prawa i moralności. Podstawy psychologii emocjonalej. Warsaw: PWN. Petrażycki, Leon (Jerzy Lande and Wiktor Leśniewski eds.), 1959–​60[1909–​10]. Teorija prava i gosudarstva v svjazi s teoriej nravstvennosti. 2nd ed. Polish translation Teoria prawa i państwa w ziązku z teorią moralności. Warsaw: PWN. Petrażycki, Leon, 2000[1909–​10]. Teorija prava i gosudarstva v svjazi s teoriej nravstvennosti. 2nd ed. St. Petersburg: Lan’. Podgórecki, Adam, 1974. Law and Society. London: Routledge and Kegan.

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Podgórecki, Adam, Wofgang Kaupen, Jean Van Houtte, Peter Vinke, and Berl Kutchinsky, 1973. Knowledge and Opinion about Law. Bristol: M. Robertson. Pospíšil, Leopold, 1971. Anthropology of Law: A Comparative Theory. New York, NY: Harper & Row. Shugar, Grace W., 1982. Action Discourse and Topical Discourse in Learning to Use Language. Grazer linguistische Studien, 17, 18: 220.

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PART III

Legacies to the Social Sciences

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9 A COMMUNICATIVE APPROACH TO LEON PETRAŻYCKI’S THEORY OF LAW Andrey V. Polyakov

Leon Petrażycki and the St. Petersburg School of Legal Philosophy Leon Petrażycki studied and worked at St. Petersburg State University for over twenty years. It was there that he established his school of thought and wrote his major works in the philosophy of law.1 Petrażycki was a brilliant thinker who revolutionized legal studies, or at least made a fateful breakthrough in this academic discipline. It is no coincidence that the communicative approach to law is predicated on Petrażycki’s ideas and develops them in the spirit of the St. Petersburg school of legal philosophy.2 This process was initiated by his closest disciples including P.E. Mikhailov, Georgiy Guins, Max Lazerson, Pitirim A. Sorokin, Nicholas S. Timasheff, Georges Gurvitch, Mikhail Reisner, Jerzy Lande, and Georgij Nanejšvili. Particularly interesting have been recent attempts to interpret and reexamine the ideas of this Russian-​Polish social scientist.3 Petrażycki managed to do what previous classical legal scholars had not: to identify and substantiate the essential link between law and the human being. From this perspective, rather than an external reality independent of people’s control, law is instead seen as a “humanized” reality. People construct and perceive law through uniquely human mental capabilities. The political state, like other social institutions, can mediate in this process, but it does not create law with its volitional acts. Beginning with his early works, Petrażycki endeavored to establish his own psychological version of a “pure theory of law” and, like Hans Kelsen, developed his ideas to their logical conclusion.4 This accounts for the radical nature of his theoretical conclusions that unsettled his contemporaries; namely, his psychological conceptualization of law (in strict accordance with his epistemological principle DOI: 10.4324/9781351036740-13

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of adequacy—​see 2011[1907], § 4, 2010[1908], §§ 4–​6) in terms of imperative-​ attributive emotions. Of course, Petrażycki realized that, apart from explaining mental (emotional and cognitive) phenomena, his theory had to also explain the existence of social as well as semantic and symbolic (normative-​textual) phenomena. However, due to his commitment to “psychologism,” he failed to find a solution to the problem of the existence of the social, despite searching for it throughout his academic life. This commitment explains why Petrażycki referred to his theory of law as “psychological,” rather than “socio-psychological.”5 He deliberately avoided the potential for conflating law’s psychological and sociological elements. It should be noted that Petrażycki was influenced not only by contemporaneous psychology but also by Darwin’s theory of evolution. Thus, while defining law as the class of imperative-​attributive emotions that exist in each individual’s psyche independently of the existence of similar emotions within other individuals, he linked their development and subsequent transformation with the legal evolution of society. This evolutionary development involves the natural selection, as it were, of legal emotions. Due to such a selection, the imperative-​attributive emotions most needed by society receive social support and are secured not only on the level of intuitive law but also by corresponding legislative facts. The resolution of conflicts between imperative-​attributive experiences contributes to the development of a coordinated, or unified, legal order.6

Whither the Psychological Theory of Law? Particularly significant in this conceptualization is that it is unnecessary that law be consistent and objective. That is why Petrażycki would agree that a murderer’s imperative-​attributive belief that he has the right to kill his victim has the same legal status as the victim’s imperative-​attributive conviction that no one has the right to take her life.7 According to Petrażycki, the conflict between these legal emotions would be unresolvable without the involvement of a third party. As far as the imperative-​attributive emotions prevailing in a given society (and reflected in its positive law) correspond to the emotions experienced by the victim, the resolution of the conflict by a third party, such as a court, will inevitably hinder the murderer’s imperative-​attributive belief and strengthen those of the majority of the members of society (i.e., that the killer must be punished). This produces a positive or “superior” sort of law. In what follows, I articulate the problematic conclusions that arise from this understanding of law8 and propose a different way for developing some theoretical starting points found in the psychological theory of law. Relying on his own epistemology, Petrażycki recognized only two kinds of reality—​the physical and the psychical. Since he believed that law belongs to psychical reality, he considered law as nothing but imperative-​attributive emotions, or experiences. Indeed, by excluding ideas, culture, and the social from either

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reality, Petrażycki sparked a lively discussion in the early 20th-​century Russian legal literature.9 Through his psychological approach, Petrażycki attempted to dispel the conventional notion of law as some sort of higher power controlling human behavior. However, given his argument that law is not an objective phenomenon external to individuals and that it amounts to illusions created by the psyche, it is thus impossible to speak of a reality of rights, duties, and legal norms. This contradicts what is known experientially about social interactions. The idea of law’s non-​existence outside the psyche is refuted by empirical facts that make its independent and objective existence evident every day. Courts settle civil disputes and determine criminal liability; citizens enter into legal relations with one other, acquire property, raise children, perform their duties at work, pay taxes, and exercise their rights. Like any other cultural or social phenomenon, law exists and manifests itself despite the absence in psychical or physical reality of referents to which a reduction of law can be uncontroversially carried out. Convincing people who daily rely on law to realize their goals (among other things, through coordinated and conscious interactions) that it does not exist as an objective reality is as difficult as convincing passengers that the airplane that has just carried them to their destination does not exist because none of them can explain the forces that allowed it to fly. Of course, Petrażycki was correct in contending that a naive mind often mistakes that which has nothing to do with reality for reality itself. For instance, a spoon in a glass of water appears bent when viewed from a particular angle; however, such a naive notion can be easily dispelled empirically. The situation with the objective nature of law is entirely different: it is everyday human experience and practice that point to a common world that make the individual’s world possible.

Law and Phenomenological Sociology There is no reason to believe that the world of everyday life (both the lifeworld of individuals and the social world) is less “real” than physical or psychical reality. Everyday reality is the key to understanding law as both a phenomenon of the individual psyche as well as a social, normative, textual, and institutional phenomenon. Explanations for the reality of everyday life can be found in Max Weber’s interpretive sociology as well as in the phenomenological sociology of Schütz, Berger, Luckman, and others. From the natural attitude,10 it is precisely the world of everyday life (the lifeworld) that is experienced as reality. According to Alfred Schütz, the world of daily life is the intersubjective world, which existed long before we were born and which was experienced and interpreted by our predecessors as an organized (institutionalized) world. Its peculiar feature is that we not only experience it, we also interpret it. Schütz underscores that

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all interpretation of this world is based upon a stock of previous experiences of it, our own experiences and those handed down to us by our parents and teachers, which in the form of “knowledge at hand” function as a scheme of reference. 1962a[1945]: 208 Schütz states that this stock of experiences at hand includes the realization that ours is a world of “well circumscribed objects” (ibid.). These objects have certain qualities, which resist us, but we can influence them. Only through a philosophical, and, more so, a psychological analysis can we retrospectively describe how the objects of the outside world influence our senses, how inaccurately we perceive them, how with “active apperception” our minds isolate certain features from the field of perception, grasping them as delimited items. Schütz underscores that the natural attitude ignores these issues. Its very point of departure is not the individual’s private world, but rather the inter-​subjective world, common to all of us (ibid.). The same goes with law. Clearly, law can be recognized and praised, but it can also be criticized and called inferior, unjust, or pseudo-​law. However, despite theoretical disagreements and different interpretations, all law—​according to its very “nature,” and provided that it is really relevant in social life—​is characterized by its uniform understanding (its “validity”) and by its recognition by the interacting parties (its “effectiveness”). Thus, law’s validity and effectiveness constitute some, but not all, of its necessary features. However, as previously noted, Petrażycki linked the concept of law exclusively to the individual’s imperative-​attributive emotions. For instance, he wrote that: all legal phenomena … are purely and exclusively individual phenomena from our point of view … Every psychical phenomenon takes place in the psyche of one individual and only there: its nature does not change as something else does, or does not, happen somewhere—​between individuals, above them, in the psyche of others, or not, or if other individuals do exist or not. Petrażycki [1909–​10], § 5: 104 f., 2011[1909–​10]: 75 By this reasoning, Petrażycki strictly follows his own epistemological premises. Furthermore, he was convinced that, because people cannot observe what is happening in someone else’s mind, all the spheres of existence of legal phenomena (as well of all psychical phenomena in general) are absolutely inaccessible, completely closed to our observation, with a single exception: our own psyche, that is, the consciousness of our “ego [ja].” Petrażycki, 2010[1908], § 3: 403, 2011[1907]: 13

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Considering the many achievements of modern science, it is today difficult to accept this conclusion. The claim of the absolute inaccessibility of all the spheres where legal phenomena exist is incorrect.This, however, did not prevent Petrażycki from recognizing a “sphere of existence of legal phenomena” outside the consciousness of a specific individual, that is, within the consciousness of other individuals. He simply maintained that that sphere is not accessible to direct observation. The point is that law’s ontology cannot be associated exclusively with direct observation of one’s own psychic experiences.11 Petrażycki’s imperative-​ attributive emotions cannot have legal meaning if they are only acts of consciousness. Generally speaking, meaning is not a quality inherent to certain experiences emerging within our stream of consciousness but the result of an interpretation of a past experience looked at from the present Now with a reflective attitude. Schütz 1962a[1945]: 210 Developing this idea further, Schütz maintained that “as long as I live in my acts, directed toward the objects of these acts, such acts do not have any meaning” (ibid., emphasis in the original). My acts become meaningful when grasped as past experiences, in retrospection. Consequently, only the “experiences which can be recollected beyond their actuality and which can be questioned about their constitution are … subjectively meaningful” (ibid.). Thus, any meaning associated with the notion of law also requires imperative-​ attributive experiences. If it is impossible to present in a meaningful way what Self is obliged to do and what Other is entitled to, then no interaction between them can occur. By definition, no imperative-​attributive emotion can exist if one cannot rationally distinguish between its imperative (obliging) and attributive (claiming) contents. Petrażycki implicitly confirms this conclusion: Someone not acquainted, through his own psychical experience, with hunger, thirst, anger, joy, and the like, would, in general, be bereft of knowing these psychical phenomena, even though others may know and experience them; hence … he could not understand the corresponding behaviors, bodily movements, and speeches of others. If someone jumped for joy in front of him or physically attacked another in anger, since he never experienced joy or anger, those movements would be an unfathomable mystery to him; he might suspect an exotic sickness causing such peculiar convulsive movements, or, perhaps, would make various guesses … based on his own inner experience, but all this would be only inevitably unsuccessful guessing. 2010[1908]: 404; emphasis added

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In this passage, Petrażycki acknowledges the possibility of identical experiences and cognitions by different people. Of course, such an identity is relative, without guaranteeing the “exactness” of experiences. But communication does not require or result in identical experiences. It presupposes mutual understanding without guaranteeing the identity of experiences. Furthermore, law does not even require such an identity. Law requires a basis for cooperation, which is a person’s ability to express her intention to others with signs. This is the case because, in their relationships with others, people rely on emotions and experiences as well as on meanings. This is an issue that Petrażycki basically neglected.12

Communication as a Link between the Individual and the Social Each person begins only with her experiences. However, by virtue of events in the outside world and especially language (understood as a communicative event), we can understand others through appresentation.Through mutual understanding and accord “a communicative common environment is thus established, within which the subjects reciprocally motivate one another in their mental activities” (Schütz, 1962b[1955]: 315, emphasis in the original). Moreover, it is assumed that the “mutual appresentational comprehension of events in the Other’s mind leads immediately to communication” (ibid.). As noted by Schütz, communication can occur only within the reality of the outer world, and this is one of the main reasons why this world … has the character of paramount reality. Even the voices which the schizophrenic believes he hears are hallucinated as voices, and refer, therefore, to events within the outer world. 1962b[1955]: 322, emphasis in the original Phenomenologists note that all kinds of experiences transpire in the internal time of the subject and belong to his stream of consciousness. But because they can be recalled and reproduced, these experiences can be transmitted to another person through language. Whether stemming from fantasy or from scientific theories, experiences may become the content of communicative actions. In these cases, the interactants may “leap” from the finite province of meaning called “the world of daily life” into the area of games, art, religious symbols, legal theory, and so on. “What formerly seemed to be a reality while attended to may now be measured by another yardstick and prove to be non-real or quasi-real; but this is so only under the specific form of a present non-reality, whose reality may be restored” (1962b[1955]: 258). Thus, the paradox of communication, according to Schütz, only arises if we believe that: sociality and communication can be realized within another finite province of meaning than the world of everyday life which is the paramount

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reality. But if we do not make such an unwarranted assumption then science becomes again included in the world of life. 1962b[1955]: 259 As mentioned above, not only does Petrażycki acknowledge common understanding, but he also views behavior as a text that must be read, thus recognizing that it has a common, i.e., “objective” (or, in actual fact, intersubjective) meaning. But this is only the case if the subjective semantic context corresponds to the objective semantic context, which is to say, if there is a common meaning of the text and of the interaction ensuing from it.

Communicative Bases of Law Without an objective, or common meaning, there can be neither law nor legal studies. As explained by Schütz: the subjective meaning which the individual legal acts have for those enacting or performing them must be ordered within an objective meaning-​context by means of what we should call ideal-​typical constructions on the part of the interpreting science of jurisprudence. 1967[1932]: 246–​7 The establishment of invariants (Invariantsetzung, Schütz 1932: 28213) through formalization and generalization “make[s]‌it possible to interpret subjective meaning-​contexts as objective meaning-​contexts of law” (Schütz 1967[1932]: 248). In this regard, Schütz underscores Kelsen’s statement that: one cannot take the declared legal meaning of certain human acts at their face value; to do so is simply to beg the question of whether such declared meaning is really the objective legal meaning. For whether these acts are really legal acts at all, if they are, what their place is in the legal system, what significance they have for other legal acts—​all these considerations will depend on the basic norm by means of which the scheme that interprets them is produced. Kelsen 1925: 129, quoted in 1967[1932]: 246 Law cannot be analyzed outside of the communicative dimension, the epistemological premises of which are outlined above. However, this stipulation has anthropological and ontological premises as well. Human identity begins with the distinction between Self and Others. According to the Russian philosopher Semyon Frank (a critic of Petrażycki’s subjectivistic psychology), if every person were a self-​contained and unique reality having nothing to do with others, society

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as a unity of life together would be unattainable (Frank 1991[1930]: 284). As previously explained, this unity is constructed through language. Unlike other users of language (broadly understood as comprising all forms of communication, including those found among animals), humans extract meaning from texts. Meaning does not exist without a text, so when something has a meaning, it exists through a signifier and, therefore, through a sign. With this in mind, the term text refers broadly, not to an author’s creation, but to the reality of daily life that people confront.14 Communicating something meaningful amounts to creating a text. Others perceive your thoughts only through the text’s sign system, whether oral or written, verbal or nonverbal. A text can only be apprehended in context, that is, in relation to a corpus of other texts. For example, the meaning of “No Smoking” (see Bulygin 2015[2004]: 304) can only be understood through several circumstances that make it possible to determine whether it is used to express a norm or a normative proposition. As such, we need to pose the following questions: Who is the author of this text? When was it created? With what purpose in mind? Does the text impose an obligation to comply with the norm it expresses? What is the expected reaction when the norm is disobeyed? And so on. While understanding determines the probability that a text will become law, its actualization presupposes communication. Communication can be viewed as the constitutive basis of the social in general and of law in particular. As for the social, it cannot be defined simply in terms of “interactions.” This term is too broad. Nor does it suffice to define social phenomena in terms of interactions characterized by exchanges of information. The social consists of an interaction based on the common, intersubjective, meaning of texts perceived by the interacting subjects. The social does not exist without communication. Moreover, what matters is not the interaction per se, but that the interaction is determined by the participants’ subjective meanings that, in turn, are objectively preset by existing texts. Communication results from the unification of the objective and the subjective, the social and the individual, the logical and the hermeneutical, the rational and the emotional, and the accidental and the systematic. These properties must be considered regardless of what forms the social takes, including law. Law is not accessible to just any type of perception. For instance, animals see the world around them, are aware of dangers or of prey they can catch, but they do not perceive, and cannot “catch” legal meanings. Therefore, law does not exist for them.15 Law exists where the subjective meaning of a legal text and its objective significance result in an “emergent societal structure” (Krawietz 2001: 37). Moreover, a legal text is not a text that describes something but one that legitimately determines behavioral opportunities, the rights and duties, for certain recipients. From the communicative perspective, law is not an isolated entity, an abstract metaphysical idea (i.e., the common good), an a priori value (i.e., equality, freedom, or justice), or a textual instruction predicated on someone’s will (i.e., a normative act). Rather, law is a “living” (holistic, synthetic, integral,

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procedural, developing) psychosocial phenomenon that includes reason, emotions, values, regulations, and textuality. There are also various approaches to the notion of communication.16 Communication is often understood as the synthesis of three different selections: the selection of the information, the selection of the utterance, and the selective understanding or misunderstanding of the utterance and its information (Luhmann 1991: 203). While this approach may work for descriptive information, the situation is different with prescriptive information, which is of paramount importance for law. When a party commands another party to perform an action based on justifications agreed to by both, such communication does not involve the selection and understanding of information in the form of mere apprehension. Here, understanding requires a corresponding behavior. That is why human behavior—​given that it is an integral part of cognition and understanding—​cannot be excluded from the concept of communication, at least as far as prescriptive communication is concerned. According to Humberto Maturana and Francisco Javier Varela, the structure of a social system leads to a real co-​ontogenesis of its components. It also leads to their structural coupling, and any organism may be considered a member of a social group as long as it remains part of the structural coupling. According to their definition, communication is a coordinated behavior mutually triggered among the members of a social unity (Maturana and Varela 1992: 193). From this perspective, communication is a special type of conduct of organisms in social systems. Communication is not something resulting from behavior, it is behavior that “takes place in a domain of social behaviors” (ibid.).17

Legal Communication As mentioned previously, all communication is mediated by a text. But a text presupposes that there are subjects capable of understanding its meaning and value, and of interacting with each other based on the information they receive. When this happens, communication takes place. This is the only way we can speak of legal communication when interpreting the text of a normative act that says, “No Smoking!” It is a legal text not because a state legislated the ban, but because most people interpret it as generally binding. This amounts to that text’s being experienced as having been enacted “in the proper way” and as empowering officials to enforce it.18 Its legitimation cannot be established through formal-​ quantitative measures such as the number of people who voted in favor of the bill. It can only be established empirically, either through people’s consciousness of the rightness of their acting in their capacity as right-​or duty-​holders or through their asserting and protecting their rights (directly, or through social institutions). This also means that legal communication (unlike communication in general) cannot be reduced to the mere understanding that there is a smoking ban in place. There is nothing particularly legal about

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interpreting a text as a prohibition. Someone who understands that smoking is not allowed and nonetheless continues to smoke may be participating in an informational communication, but they are not participating in a legal communication (this, for example, is Luhmann’s position). The main elements of legal communication are correlative rights and duties. As for rights, the communicative approach is indebted to Petrażycki’s broad conceptualization that includes, not only simple rights to either actions, or abstentions, or tolerances, but also compound (or bundles of) rights, like property and authority rights. In particular, authority rights are conceptualized as made up of: 1. the general right to do as one pleases with one’s subordinates—​including punishing them—​with or without limitations or, in the case of special authorities, to do what one pleases exclusively in certain domains, and, 2. the right that one’s subordinates comply with commands or prohibitions with or without limitations, in all or exclusively in special domains (cf. Petrażycki 1909–​10, § 12: 199–​200, 2011[1909–​10]: 129–​30).19 This broad understanding of rights explains why Petrażycki’s correlative conception of law can encompass most phenomena usually covered by the term law. Due to their inherent regulatory nature, rights and duties determine whether a certain communication is legal. Therefore, legal communication occurs when the addressees of the “No Smoking” ban understand the necessity of compliance and refrain from smoking. The determining factor is that the ban’s perception as legal is linked with the recognition of the legitimacy of the pretense that that ban be complied with by those to whom it is addressed.20 This recognition must obtain among the majority of the addressees of the provision. It is that they extract from the same ban similar norms that turn the ban into a binding normative fact. In other words, the legitimacy of a text—​i.e., that which converts it into a legal text—​ amounts to the fact that most people extract from it similar norms. For a text, or normative fact, to be legally binding it is necessary that the norms extracted are similar, thus enabling a social coordination based on rights and obligations.21 Successful legal communication involves the obtaining of such a social coordination. These facts testify to the intersubjective nature of the bindingness of legal texts, of the norms extracted from them, and of the resulting psychical experiences.22 Thus, if law is generated by cognitive (i.e., emotional-​intellectual) acts of recognition, it exists as law only in an active form, namely, when rights and duties are actually respected and discharged. Legal communication proceeds from texts to actions through the legitimation of the former. It includes informational and behavioral aspects as “premises” and “consequences.” Legal communication, therefore, is an operationally complete cycle; a whole that may create another communicative whole. This is the case when an interaction based on rights and obligations (i.e., a legal communication) gets novated—​in a broad sociological sense—​into a new legal interaction according

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to its stage of development (e.g., if a loan is not repaid and the creditor goes to court). Legal communication does not consist of facts and things but of processes and events. What is important here is the linguistic “shell” of the information. Language and speech involve and provide a sort of a social initiation. First of all, there are signs (texts) that are subsequently understood by a recipient. This then leads the recipient to produce new signs and perform actions in accordance with the received (understood) information and the way she processed it.23 Thus, legal communication unites texts—​in the sense of its uniting their rational meaning and their being perceived as binding—​as well as the behavior of participants. Communication resembles a chemical reaction that results in a new element or molecule, with its unique properties, that cannot be found among the properties of its constituents. The situation is similar with law. By themselves, the individual components of law24 do not form an integral phenomenon. Law comes into existence only as the result of a certain “chemical reaction,” with the emergence of legal communication. Law is legal communication that results from the fusion of the objective and the subjective. It involves the implementation of the rights and duties of communicating participants, as well as the implementation of the legal texts to which they correspond. From this perspective, law exists both at the social level and the state level. We can discuss the psychical (cognitive-​emotional), social, and normative dimensions of law separately, but law is an integral whole. As such, law is an order of relations where participants interact with one another on the basis of their interpretation of texts and through the exercise and discharge of their correlative rights and duties. Let us return to the question of what distinguishes legal from non-​legal communication. Law as a practical system of action is based on mutual understanding; without it, law is not possible. Because law requires interrelated behavior, it cannot exist without information that is structured by a legal source and that is addressed to participants in legal communication. In order to have a legal communication, it is not enough to have information with some content or even with some prescriptive form. It is necessary that it possess a persuasive force.Therefore, law exists only when people believe in its existence, and this happens when it becomes part of their lifeworld, i.e., when the space of legal communication comes into being. The habitualization, institutionalization, and legitimation of legal texts are at the opposite end of a continuum from legal physical force, whether expressed as self-​ defense or as official enforcement. This is what creates the legitimate force of law. Thus, legal pressure is always legitimate. Further, law is legitimized by symbolic means—​seals, wigs, uniforms, etc. Symbols fill the gaps in the understanding and the justification of law, thus reducing the complexity of the legal reality. Law is legitimized, not only through the government’s enactment of primary texts (e.g., laws) and by scholarly and ideological texts on primary texts (e.g., legal treatises and newspapers’ articles on a certain piece of legislation, respectively), but also through secondary ones produced in the course of the implementation

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of rights and duties (e.g., judgments or even the arguments used by a police officer intending to fine you for some offense). Here we can employ the concept of circularity, which, in a somewhat different sense, is discussed by Gunther Teubner, Mark Van Hoecke, and others.25 Thus, there is a unification of the cognitive world of the person as a social subject and her behavior as a bearer of rights and duties. This behavior relates to the behavior of other subjects and to the texts that determine their respective rights and duties. I believe this is what the explicative meaning of the communicative approach to law amounts to. From this, it follows that the presence of law in a particular society should be based on the presence of its member’s real rights and duties. Only those individuals whose interactions are based on rights and duties that arise from texts that are experienced as universally binding can be seen as engaging in legal communication, and thus involved in creating law. Petrażycki was right in maintaining that rights and duties are ontologically closer to the phenomenon of law than legal texts or acts. But the implicit meaning of legal communication involves the conscious and responsible exercise of human freedom. Pace Petrażycki,26 this means that where there is no coherent system of interrelated rights and duties as part of a society’s life-​world, there is no law.

Notes 1 For more information, see, for example, Merezhko (2016), Walicki (1992), Polyakov (2014a). 2 See, for example, Polyakov (2016) and the essays collected in Polyakov (2014b). 3 Works that are in one way or another relevant to the topic include, Timoshina (2012, 2013), Cotterrell (2015), Treviño (2013), Le Goff (2013), Motyka (2007), Fittipaldi (2012, 2013, 2015). 4 Petrażycki and Kelsen’s connection with Husserl’s phenomenology is significant. Kelsen also sought to substantiate the possibility of “pure” knowledge. The close relation between Petrażycki’s theory and phenomenology was frequently pointed out during his lifetime. One attempt to interpret his psychological theory of law through phenomenology was made by Mikhailov (see Timoshina 2012: 257–​8). Timoshina also agrees with Georgij Nanejšvili that, if Petrażycki’s theory were reduced to its basic idea, “we would have an elegant phenomenological theory of law” (ibid.: 258). On Petrażycki and Husserl, see also Chapter 5, in this volume. On the concurrence of the fundamental ideas of Kelsen’s pure theory of law and phenomenological sociology see Schütz (1932: 281–​2, 1967[1932]: 246–​8). 5 According to Andrzej Walicki, Petrażycki’s psychological theory of law was based on sociological assumptions and proved that the content of the individual psyche is radically social. Nevertheless, it is significant that he called his theory “psychological,” and not “socio-​psychological,” which would certainly have been more correct. 1992: 255

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However, it is likely that Petrażycki wanted to demonstrate that law as an ontological phenomenon can be wholly contained within psychologism, and all law-​related phenomena, including their social manifestation and symbolic forms, are nothing more than products of law as a psychological phenomenon. Taking this into consideration, it becomes clear that Petrażycki was deliberately contrasting his psychologism with Durkheim’s sociologism (ibid.). 6 On Petrażycki’s “unifying tendencies,” see Glossary. (Note by eds.) 7 This radical Petrażyckian position is elaborated in Chapter 7, in this volume. 8 One problem with Petrażycki’s theory is the conclusion from the situation outlined above: that if one litigant changes her initial intuitive belief in light of new normative facts, she therefore acknowledges that her previous imperative-​attributive experiences (unlike those of the other party in the lawsuit or of the judge) were non-​legal. But this means that the criterion for defining imperative-​attributive experiences as law is not the psychological one of a subject’s conviction, as Petrażycki surmised, but the common meaning recognized by all parties. This is what Motyka points out when he writes that Petrażycki’s distinction between official and unofficial law suggests “extra psychical” criteria that contradict the basic principles of his legal theory (Motyka 2007: 37). 9 Part of this extensive debate can be found in the pre-​revolutionary Russian journal Juridičeskij vestnik (“Juridical Bulletin”). See Kistiakovsky (1996[1914]), Mikhailov (1914), Spektorskij (1914), and Kistiakovsky (1914). 10 This expression is intended in Schütz’s sense of natürliche Einstellung (e.g., Schütz 1932: 34), a phrase usually rendered as “natural attitude,” e.g., Schütz (1967[1932]: 36). (Note by eds.) 11 This key point in Petrażycki’s epistemology is inconsistent with the fact that he acknowledged the possibility of ascribing rights and duties to other individuals. According to Petrażycki, one can only experience one’s own imperative-​attributive emotions and not those attributed to others. As it turns out, such an ascription of imperative-​attributive emotions is a purely theoretical judgment and not an imperative-​ attributive experience. But then those ascriptions cannot be regarded as law under the psychological theory. (For a different reconstruction, see “imperative-attributive emotion,” in Glossary. Cf. also Chapter 7. Note by eds.) 12 A position similar to Petrażycki’s can be found in Pattaro (2005: 99–​100). 13 This term has not been translated in Schütz (1967[1932]: 247). 14 [T]‌ext is not just something written. Text is a dance, a show, a film, a piece of art[,] etc. In sub-Sahara there have been discovered that some tribes presented punishable crimes in the form of clay statues presenting the vicious deeds—and this is also a text, in this case: the criminal code. Gräzin 2005: 24 15 This is why I cannot accept Fittipaldi’s attempt to develop Petrażyckianism so as to demonstrate that animals are also capable of legal experiences (see: Fittipaldi 2014, § 2, 2015, § 3, and 2016a: 211). Owing to space limitations, I cannot discuss this issue here. 16 My understanding of legal communication is largely compatible with the ideas of Jürgen Habermas, Niklas Luhmann, Werner Krawietz, and Mark Van Hoecke. 17 Social communication is not a simple transfer of information from one individual to another. Communication is the key social process of co-​ creating, preserving, sustaining, and transforming social realities. In its most essential sense, communication

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is humanity’s mode of existence; it is the fundamental, primary social process whereby we, together, create, reproduce, and transform our social worlds. Communication is life itself (see Watzlawick et al. 1967; Barnett Pearce and Cronen 1980). 18 The right to enforce it stems from the meaning of the legal prohibition, and its existence does not depend on a subject who publicly announces the pretense that the ban be complied with. 19 In this case, the commands and prohibitions, respectively, call into being rights to the subordinate’s actions, abstentions, or tolerances. 20 This is why the violation of a legal norm produces the response of responsibility. Petrażycki was right to believe that norms exist in human consciousness and not in texts (in normative facts). However, he did not acknowledge the intersubjective nature of such a consciousness, that is, its containing shared, and therefore objective, meanings. 21 This position is different from Fittipaldi’s strictly Petrażyckian approach (cf. 2016b: 463), on which for the bindingness of a normative fact it suffices that it call into being multiple, and even conflicting, normative convictions. 22 This parallels Petrażycki’s theory. He considered various types of positive law, which he regarded as classes of imperative-​attributive human emotions caused by the various types of normative facts. Their causing such emotions is what the legitimation of legal texts, or normative facts, amounts to. On Fittipaldi’s interpretation, in order for something to be a normative fact it does not suffice that it cause legal emotions, it must be also experienced as the foundation, or justification, of those emotions (2016b: 462). It should be noted that Petrażycki sharply distinguished legislative provisions and other normative facts, from the legal norms extracted from them (1909–​10, § 14: 228, 2011[1909–​10]: 142). On this subject, see Chapter 6, in this volume. 23 If we look at social communication through John Austin’s theory of speech acts (1975[1962]), we can say that any social communication is based on speech acts with locution, illocution, and a perlocutionary effect. 24 Think, for example, of legal texts (i.e., semiotic systems that accumulate legal information), of subjects with will and legal consciousness (understood in the Petrażyckian sense as beings who experience imperative-​attributive emotions), and of their real activity in social space and time. 25 See for example Van Hoecke: According to traditional legal theory, following the approach of Hans Kelsen, legitimation is approached as a linear process, in which, step by step, a rule or a decision is based on a higher rule, until some “basic norm” is reached, which has to be introduced in order to stop a regressus ad infinitum. This theoretical approach entails considerable problems, mainly related to the status of that “basic norm.” Moreover, it does not fit very well with legal reality. Today, legal systems have more and more a circular structure when it comes to legitimation. “Circularity” means that the higher norms within the hierarchy of a legal system not only determine the lower ones, but also in turn, are determined by these lower ones. Van Hoecke 2002: 37–​8 26 A radicalization of Petrażycki’s idea of the conflict-​producing nature of legal phenomena can be found in Chapter 7, in this volume.

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References Austin, John L. (James O. Urmson and Marina Sbisà eds.), 1975[1962]. How to Do Things with Words. Cambridge, MA: Harvard University Press. Barnett Pearce, Walter, and Vernon E. Cronen, 1980. Communication, Action, and Meaning: The Creation of Social Realities. New York, NY: Praeger. Bulygin, Eugenio, 2015[2004]. The Objectivity of the Law. In Eugenio Bulygin (Carlos Bernal et al., eds.), Essays in Legal Philosophy. Oxford: Oxford University Press. Cotterrell, Roger, 2015. Leon Petrażycki and Contemporary Socio-​ Legal Studies. International Journal of Law in Context, 11, 1: 1–​16. Fittipaldi, Edoardo, 2012. Everyday Legal Ontology: A Psychological and Linguistic Investigation within the Framework of Leon Petrażycki′s Theory of Law. Milan: LED. Fittipaldi, Edoardo, 2013. Nauka na službe u principa zakonnosti: Kritičeskaya zaščita kontsepcii juridičeskoj dogmatiki L’va Petražickogo. Pravovedenie, 5: 48–​76. Fittipaldi, Edoardo, 2014. Psihosociologija prav čeloveka: dve petražitskianskie perspectivy. Pravovedeniye, 5: 8–​30. Fittipaldi, Edoardo, 2015. Protivorečija kak ėmpiričeskie nesovmestimosti v psihologii ėtičeskih ėmotsij i v pravovoj (i ne tol’ko) dogmatike: tadikal’no-​ėmpiricheskij podhod. Pravovedeniye, 5: 24–​39. Fittipaldi, Edoardo, 2016a. What Concept of Morality for Sociology of Morality? From Ossowska’s Rejection of Substantive Definitions to a Formal (Psychoanalytic) Cross-​ Disciplinary One. Societas/​Communitas, 2: 185–​220. Fittipaldi, Edoardo, 2016b. Leon Petrażycki’s Theory of Law. In Enrico Pattaro and Corrado Roversi (eds.), Legal Philosophy in the Twentieth Century: The Civil Law World. Dordrecht: Springer. Frank, Semyon L., 1991[1930]. Duhovnye osnovy obščestva: Vvedenie v social’nuju filosofiju. Russkoe zarubež’e: Iz istorii socialnoj i pravovoj mysli. Leningrad: Lenisdat. Gräzin, Igor, 2005. Law Is Myth. International Journal for the Semiotics of Law, 18, 1: 23–​51. Kelsen, Hans, 1925. Allgemeine Staatlehre. Berlin: Springer. Kistiakovsky, Bogdan A., 1914. Jurisprudencii i diletantizm v filosofii. Juridičeskij vestnik, 5, 1: 70–​106. Kistiakovsky, Bogdan A, 1996[1914]. Realnost’ Ob”ektivnogo Prava. Pravovedenie, 4: 115–​51. Krawietz, Werner, 2001. The Concept of Law Revised—​Directives and Norms in the Perspectives of a New Legal Realism. Ratio Juris, 14, 1: 34–​46. Le Goff, Jacques, 2013. Gurvič i social’noe pravo. Pravovedenie, 5: 97–​111. Luhmann, Niklas, 1991. Soziale Systeme. Grundriß einer allgemeinen Theorie. 1st ed. 1987. Frankfurt am Main: Suhrkamp. Maturana, Humberto R., and Francisco J. Varela, 1992. El arbol del conocimiento. English translation The Tree of Knowledge. The Biological Roots of Human Understanding. Boston, MA and London: Shambala. Merezhko, Oleksandr, 2016. Psihologičeskaja škola prava L.I. Petražickogo: istoki, soderžanie, vlijanie. Odessa: Feniks. Mikhailov, Petr E., 1914. O Real’nosti Prava. Juridičeskij vestnik, 5, 1: 5–​52. Motyka, Krzysztof, 2007. Leon Petrażycki Challenge to Legal Orthodoxy. Lublin: Towarzystwo Naukowe Katolickiego Uniwersytetu Lubelskiego Jana Pawław II. Pattaro, Enrico, 2005. The Law and the Right. A Reapprisal of the Reality that Ought to Be. Dordrecht: Springer. Petrażycki, Leon, 1909–​10. Teorija prava i gosudarstva v svjazi s teoriej nravstvennosti. 2nd ed. St. Petersburg: Ekateringofskoe Pečatnoe Delo.

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Petrażycki, Leon, 2010[1908]. Vvedenie v izuženie prava i nravstvennosti. Osnovy ėmocional’noj psihologii. 3rd ed. In Leon Petrażycki (Elena Timoshina ed.), Teorija i politika prava. Izbrannye Trudy. St. Petersburg: St. Petersburg University Press. Petrażycki, Leon, 2011[1907]. Vvedenie v izučenie prava i nravstvennosti. Osnovy ėmocional’noj psihologii. 2nd ed. Abridged English translation Introduction to the Study of Law and Morality. In Leon Petrażycki (Nicholas S. Timasheff ed.), Law and Morality: Leon Petrażycki, with a new introduction by A. Javier Treviño. Piscataway, NJ: Transaction Publishers. Petrażycki, Leon, 2011[1909–​10]. Teorija prava i gosudarstva v svjazi s teoriej nravstvennosti. 2nd ed. Abridged English translation Theory of Law and State in Connection with a Theory of Morality. In Leon Petrażycki (Nicholas S. Timasheff ed.), Law and Morality: Leon Petrażycki, with a new introduction by A. Javier Treviño. Piscataway, NJ: Transaction Publishers. Polyakov, V. Andrey, 2014a. Kommunikativnoe pravoponimanie: izbrannye trudy. St. Petersburg: Alef-​Press. Polyakov, V. Andrey, 2014b. Peterburgskaja škola filosofii prava i zadači sovremennogo pravovedenija. In Andrey Polyakov (ed.), Kommunikativnoe pravoponimanie: izbrannye trudy. St. Petersburg: Alef-​Press. Polyakov, V. Andrey, 2016. Obščaja teorija prava: problemy interpretacii v kontekste kommuni­ kativnogo podhoda. Uchebnik. 2nd revised ed. Moscow: Prospekt. Schütz, Alfred, 1932. Der sinnhafte Aufbau der sozialen Welt. Eine Einleitung in die verstehende Soziologie.Vienna:Verlag von Julius Springer. Schütz, Alfred, 1962a[1945]. On Multiple Realities. In Alfred Schütz (Maurice Natanson ed.), Collected Papers. I.The Problem of Social Reality. The Hague: Martinus Nijhoff. Schütz,Alfred, 1962b[1955]. Symbol, Reality and Society. In Alfred Schütz (Maurice Natanson ed.), Collected Papers. I.The Problem of Social Reality. The Hague: Martinus Nijhoff. Schütz, Alfred, 1967[1932]. Der sinnhafte Aufbau der sozialen Welt. Eine Einleitung in die verstehende Soziologie. English translation, The Phenomenology of the Social World. Evanston, IL: Northwestern University Press. Spektorskij, Evgenij V, 1914. K Sporu o Real’nosti Prava. Juridičeskij vestnik, 5, 1: 53–​69. Timoshina, Elena, 2012. Kak vozmožna teorija prava? Ėpistemologičeskie osnovanija teorii prava v interpretacii L.I. Petražitskogo. Moscow: Jurlitinform. Timoshina, Elena, 2013. L.I. Petražitskij vs. E. Ėrlih [ehrlich]: dva proekta sociologii Prava. Pravovedeniye, 5: 77–​96. Trevino,A. Javier, 2013.Aktualnost’ klassikov dlja sovremennoj sociologii prava:Amerikanskij kontekst. Pravovedenie, 5: 26–​47. Van Hoecke, Mark, 2002. Law as Communication. Oxford and Portland, OR: Hart. Walicki, Andrzej, 1992. Legal Philosophies of Russian Liberalism. London: University of Notre Dame Press. Watzlawick, Paul, Janet B. Bavelas, and Don D. Jackson, 1967. Pragmatics of Human Communication: A Study of Interactional Patterns, Pathologies, and Paradoxes. New York, NY: W.W. Norton.

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10 PETRAŻYCKI’S THEORETICAL CONTRIBUTIONS TO INTERNATIONAL LAW1 Oleksandr Merezhko

Introduction Oddly enough, it seems impossible to define international law in a logically consistent way. In the international legal literature, we frequently encounter such definitions of international law as the following: 1. international law is the set of rules (norms) governing the relations between states and the other subjects of international law, or 2. international law is the set of legal rules (norms) governing the relations between states and the other subjects of international law. If we consider the first type of definition, where international law is a set of rules, the question inevitably arises as to what kind of rules the rules of international law are. Relations between states can be regulated by different types of rules, not only legal, or, to be more precise, international-​legal ones, but also by rules of international morality, political rules, religious rules, and so on.The crucial question is how to distinguish international legal rules from other rules governing international relations. What is the criterion for doing so? Absent such a criterion, the definition of international law is overly broad. The second type of definition, which relies on the concept of legal rules that govern the relations between states and other subjects of international law, is also not of much help. Here another question pops up: What exactly is meant by “legal” in this context? In the case of national law, the answer might seem easy because there is an institution, namely, the state, that tells us which rules are legal, and in what sources to find them. In other words, in a national legal order, it is the state that supposedly identifies the rules of national law.2 But in the international DOI: 10.4324/9781351036740-14

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legal order—​i.e., in the international society of states—​there is no “super-​state” that identifies and imposes its rules upon the subjects of international law. The second type of definition of international law is also fraught with a logical mistake: it is defined by a term that is yet to be defined, namely, international law itself. Upon closer inspection, it becomes apparent that by “legal rules” what is truly meant are the rules of international law. Furthermore, in that definition, we find the concept of subject of international law which also presupposes the concept of international law. Taken to its logical conclusion, this definition asserts that international law is the set of rules of international law regulating the relations between the subjects defined by international law.3 The logical shortcomings of most notions of international law have led some scholars to refrain from defining it. Arguably, much as in the case of the concept of law in general, international legal theorists are still searching for a concept of international law. By the same token, there is a group of legal theorists, referred to as “deniers of international law” (Völkerrechtsleugner), who refute its legal nature and adopt as their point of departure the traditional positivistic concept of law as a state-​made phenomenon (Mégret 2012: 73–​4).4 Thus, there is a gap between, on the one hand, the legal scholarship that acknowledges the existence of international law without trying to conceptualize it, and, on the other hand, much general theory of law, which, in Petrażycki’s terms, was a predominantly “official-​legal jurisprudence” that developed from the research and use of official (i.e., state) law, and therefore severely neglected—​and in my opinion still does neglect—​international law (Petrażycki 2000[1909–​10], § 16: 202; 2011[1909–​ 10]: 151). In turn, most of these shortcomings result from the traditional conception of legal norms as norms backed by coercion, a conception that complicates treating international law as a form of law, owing to the absence of a superstate imposing coercive sanctions. Hans Kelsen dealt with the issues of coercion5 and international law by redefining legal norms as hypothetical norms on coercion,6 and by including retaliation and reprisal as forms of legal coercion. From a Petrażyckian perspective, this means that Kelsen saw legal norms broadly as rights or obligations to exert coercion. Thus, not only does Kelsen make it difficult to regard as legal other imperative-​attributive norms (e.g., categorical ones like “don’t kill,” cf. Fittipaldi 2016a: 458), but he also fails to regard as law such phenomena as the spontaneous respect of other people’s lives and bodily integrity, the spontaneous discharge of legal obligations free of coercion, incumbents’ spontaneous abstention from running for third terms (if there is a such ban in place), and the like.7 This is why, from a Petrażyckian approach, Kelsen’s definition should be characterized as limping. More generally, there is an important methodological difference between the Petrażyckian and the Kelsenian perspectives on law. To use Kelsen’s terminology, for Petrażycki, law is a “natural phenomenon determined by causality” (Kelsen 1967[1960]: 3), whereas for Kelsen law is a logical—​ or transcendental (in a

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Kantian sense)—​construction. That is why we can call Petrażycki a legal “realist,” while Kelsen is a legal “idealist.” This is not to say that Petrażycki’s and Kelsen’s approaches are irreconcilable. Petrażycki’s psychological theory of law could become the basis of the empirical approach to law and Kelsen’s “pure theory of law” could be used for constructing certain forms of legal dogmatics. And both could be applied to international law. As such, their theories are complementary (cf. Fittipaldi 2016b: 521, drawing from Petrażycki’s student, Jerzy Lande). Finally, another representative of contemporary legal positivism (or “analytical jurisprudence”), H.L.A. Hart was ambivalent about international law: Perhaps international law is at present in a stage of transition towards acceptance of this and other forms which would bring it nearer in structure to a municipal system. If, and when, this transition is completed the formal analogies, which at present seem thin and even delusive, would acquire substance, and the sceptic’s last doubts about the legal “quality” of international law may then be laid to rest.Till this stage is reached the analogies are surely those of function and content, not of form. Those of function emerge most clearly when we reflect on the ways in which international law differs from morality … The analogies of content consist in the range of principles, concepts, and methods which are common to both municipal and international law, and make the lawyers’ technique freely transferable from the one to the other. Bentham, the inventor of the expression “international law,” defended it simply by saying that it was “sufficiently analogous” to municipal law. To this, two comments are perhaps worth adding. First, that the analogy is one of content not of form; secondly, that, in this analogy of content, no other social rules are so close to municipal law as those of international law. Hart 1994: 236–​7 From a Petrażyckian viewpoint, Hart regards “international law” as “law” relative to municipal law in the same way that potatoes can be considered “vegetables” relative to spinaches. Hart is not interested in devising scientific concepts that select classes of phenomena capable of functioning as causal or logical subjects in adequate theories (see Glossary, “adequate theory,” as well as Fittipaldi 2016a: 444, and note 7).

Definition of International Law in the Psychological Theory of Law and Its Implications For Petrażycki, a truly scientific definition of international law can be constructed only if it is understood as a psychical phenomenon. As such, Petrażycki’s theory is able to fully include international law in the general concept of law, given that

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the common feature of all kinds of law, including both state and international law, is their imperative-​attributive nature (Petrażycki 2000[1909–​10], § 16: 201; 2011[1909–​10]: 149). Petrażycki’s theory not only looks at international law in a wholly new light, but it also resolves issues of international legal theory, which previously seemed unsolvable—​ for example, that of anomalous international-​ legal subjects like “future generations” or that of “states,” the international existence of which is controversial (see below). It therefore provides a viable alternative to today’s legal theories. Petrażycki regarded international law as a full-​blown type of law, provided that combinations of legal emotions with representations/​perceptions of actions can be found.8 Regrettably, Petrażycki did not pay sufficient attention to international law because he did not consider it developed enough. Here is one of the few passages where Petrażycki addressed international law and incidentally provided a definition of it: No matter how lamentable the current situation regarding international law is—​i.e., … individuals’ imperative-​attributive convictions concerning the behaviors to which states are reciprocally entitled (behaviors that may concern other states or their members: ambassadors, combatants, civilians, etc., during war and peace)—, no matter how close it still is to a situation where men are wolves to men [homo homini lupus] …, and no matter how removed it is from the Gospel’s admonition for fraternal cooperation [homo homini frater] …, this still barbaric law already contains myriads of … stable imperative-​attributive combinations with respect to which it can be said that part of the journey from man’s inhumanity to man [populus populo lupus] towards fraternal cooperation [populus populo frater] has already been made. Let us progress further! Petrażycki 1904: 44; 1907: 47 Not only does Petrażycki offer his concept of international law, but he also identifies the lofty ideal of the brotherhood of nations toward which he believes international law should evolve. Of course, at the time of Petrażycki, international law was at a rather low stage of evolution and similar to what Kelsen called “primitive law” (Kelsen 1949: 339). Since then, international law has changed considerably, coming closer to Petrażycki’s ideal. Based on Petrażycki’s definition, I propose a slightly modified version that takes into account the evolution of international law during the past century: International law consists of people’s imperative-​attributive convictions concerning the reciprocal rights and obligations of states and other entities (e.g., the United Nations [UN], the European Union [EU], future generations, etc.) that are regarded as subjects of international law. This conceptualization of international law may be considered partly tautological given that it contains the phrase “subjects of international law.” However,

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this is not the case because the other entities regarded as subjects of international law—​including states—​are only contents (or objects) of representations that may or may not exist in the human psyches, including those of the legal theorists who study international law. For example, for one theorist, natural persons may not be subjects of international law, but only its “objects,” whereas for another they may be subjects of international law much like states, and, for a third only natural persons may be subjects of international law because the state is a “fiction” (e.g., Ross 2006[1947]: 28). In other words, the first theorist ascribes rights and obligations only to states and intentionally ignores people, the second believes that under international law both states and natural persons have rights and duties, and, the third believes that only natural persons have international-​legal rights and obligations, thus ignoring other entities.9 There are also international-​legal theorists in whose legal psyches natural persons are ascribed rights and obligations only indirectly, that is, either by the states themselves or by an enigmatic “international legal order.” For them, individuals are subjects of international law only in so far as they are recognized as such by states. This is why they are referred to as “secondary” subjects of international law. In other words, in their legal psyches, it is states that turn natural persons, certain organizations, etc., into subjects of international law. It should be stressed, however, that in all these cases all the subjects of international law (i.e., states, natural persons, international organizations, as well as the international legal order) are only objects of (realistic10) representations to be found in the psyches of all who deal with international law. This is why this definition of international law is not tautological. The “other subjects” of international law are not determined by the characterization of international law, but by each theorist’s (and layperson’s) psyche. In other words, the “other subjects” of international law are those objects of realistic representations that people experience as capable of maintaining legal relations with other states in the same way that states reciprocally do. Therefore, whether a given entity is experienced as a member in the international-​legal community is determined empirically, not definitionally. To clarify the implications of the psychological definition of international law, it bears noting what it is that Petrażycki says in regard to interdivine law—​the law governing deities’ reciprocal rights and duties (see Chapter 11, in this volume). If in certain cultures people are experienced as maintaining legal relations with deities similar to those deities maintain with each other, this is not the case with all cultures. In other cultures, people may not be regarded as subjects of interdivine law. Significant for interdivine law as well as for international law is that individuals believe that multiple deities or states can have legal relations with each other. Once this condition is met, individuals may or may not believe that other beings like (α) demigods, fauni, humans, or (β) the Sovereign Military Order of Malta, Taiwan, future generations, are capable of having, respectively, rights and obligations toward deities or states of the same type deities and states, respectively, have with each other.

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Thus, if my proposition is correct, the primary subjects—​as objects of realistic representations—​in international law are states, in much the same way that gods are the primary subjects of interdivine law. In other words, the distinguishing feature of the international-​legal and interdivine-​legal communities is that their integral members are states or deities, respectively—​which does not exclude that other subjects may be their members. In regard to states, a further complication should be pointed out. Petrażycki distinguished two concepts of state: a psychological and a sociological one. On the one hand, as already indicated, states are objects of realistic representations (within a person’s psyche) endowed with rights and obligations. Petrażycki maintained that it was a task of the psychology of law to investigate how people realistically represent to themselves states (cf. 2000[1909–​10], § 31: 331) and asserted that, “usually, within the representation of states the representation of a territory and of a population is included” (2000[1909–​10], § 31: 330).11 On the other hand, Petrażycki also provided a sociological definition of states as forms of social coordination. In this sense, a state is a social phenomenon resulting from the fact that a certain group of people psychologically experience the same individual, set of individuals, or even the state itself—​psychologically understood (cf. 2000[1909–​10], § 12: 179, note 1)—​as their own supreme public authority. By public,12 Petrażycki meant an authority experienced as having certain rights to act, command, and prohibit for the purpose of pursuing the welfare of the members in the group or of the group as a whole (2000[1909–​10], § 12: 175; 2011[1909–​ 10]: 133), rather than in its own interest—​as is the case of the (private) authority ascribed to employers or masters toward their employees or slaves, respectively. Accordingly, a public group is a group ruled by a public authority. A crucial element in this definition is that for a public group to be considered a state, its supreme authority must not be experienced as subordinate to any other; it must be independent (Petrażycki 2000[1909–​10], § 12: 175; 2011[1909–​10]: 133).13 In sum, in Petrażycki’s sociological conceptualization, a state is an independent public group where a supreme authority is projected by a set of people’s legal psyches to certain objects of realistic representations such as gods, monarchs, supreme councils, parliaments, the people, or the state itself; that which unifies that set of people into a coherent group. In his psychological conceptualization, instead, the state is an object of realistic representation within a human psyche (Petrażycki 2011[1909–​10]: 135)—​in which case Petrażycki’s treatment of states is identical with his treatment of juristic persons.14 Petrażycki’s double conceptualization of state implies that, along with the psychological conceptualization of international law discussed above, we should also develop a sociological one that regards international law as a form of social coordination between independent (or “sovereign”) public groups—​states, tribes, etc.15 This is not to say that the sociological and psychological international law are causally unrelated. Quite the opposite. The existence of forms of social coordination between states, that is, the existence of a sociological international law may

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be partly explained by, and in turn explain, the existence of legal emotions related to international law. In other words, a reciprocal effect may exist between the international-​legal convictions of individuals, especially those who make political decisions in their states (e.g., premiers, presidents of states, etc.), and the existing forms of social coordination between states.16 The same is true of states given that a state’s sociological existence both affects and is affected by its psychological existence, and that state’s sociological existence consequently also affects its being experienced as a member in the international legal community. The more persons believe in the existence of their state (psychological existence) and in the bindingness of the norms that bring about a corresponding form of social coordination (sociological existence), the more stable are both its psychological and sociological existence.17 By the same token, a state, as a sociological phenomenon, is likely to cease to exist if most of its citizens stop believing in its existence, that is, if it ceases to exist as a psychological phenomenon. For example, the former Yugoslavia met its demise when its citizens desisted conceiving of Yugoslavia as a real entity (see note 10). As a consequence, foreign statespersons also stopped seeing Yugoslavia as an actual country. This then affected beliefs concerning Yugoslavia’s membership in the international legal community. As for the other possible subjects (e.g., NGOs or future generations) of international law, history reveals them to be of different kinds. This corroborates the thesis that there exists a homology between international law and interdivine law with its diversity of subjects—​demigods, heroes, saints, etc.—​experienced as having rights and duties toward gods. Further, it could be argued that at certain stages of cultural development, international and interdivine law are indistinguishable. In ancient Sumerian civilization, for instance, international law was interdivine law, because in the Sumerian’s psyche relations, treaties, and wars between city-​states were personified and perceived as relations between their respective deities. Each city-​state had its own god who protected it, and the whole universe was viewed as governed by an assembly of gods. In the psyche of the Sumerians, it was gods that waged wars against one another, made peace, and concluded treaties. As pointed out by Frankfort et al.: [t]‌he fact that the Mesopotamian universe was conceived of as a state—​ that the gods who owned and ruled the various city-​states were bound together in a higher unity, the assembly of the gods, which possessed executive organs for exerting outward pressure as well as for enforcing law and order internally—​had far-​reaching consequences for Mesopotamian history and for the ways in which historical events were viewed and interpreted. It vastly strengthened tendencies toward political unification of the country by sanctioning even the most violent of means used toward that end. For any conqueror, if he was successful, was recognized as the agent of Enlil.18 It also provided—​even at times when national unity was at a low ebb and

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the many city-​states were, for all practical purposes, independent units—​a background on which international law could work. Frankfort et al. 1946: 194–​5 In Sumerian civilization, rulers were seen as representatives of the gods: [A]‌boundary dispute between the neighboring city-​ states Lagash and Umma was viewed as a dispute between two divine landowners, Kingtrsu, the god of Lagash, and Shara, the god of Umma. As such it could be taken to court and adjudicated by Enlil in Nippur. Enlil implemented his decision through the ruler who was then his human representative, Mesilim, king of Kish. Frankfort et al. 1946: 195 This case, where international law was indistinguishable from interdivine law, makes a compelling argument for examining their gradual differentiation. According to diplomatic law, diplomats were initially considered to be under the protection of the gods. Later, they were regarded as representatives of the sovereigns, who were experienced as having divine attributes. Only later did diplomats come to be seen as representatives of states. Thus, it is not too far-​fetched to maintain that for a long time international and interdivine law overlapped. In the contemporary legal psyche, this is no longer the case, due in part to the advent of monotheism.19 However, particularly in the legal psyche of laypeople, international-​ legal relations are described in terms of struggles and friendships between animate entities and, arguably these expressions reflect a corresponding mode of thought. For instance, the United States has been described as a “global policeman” or “sheriff ” struggling to maintain “law and order” in international relations against “villains” (e.g., “rogue states”). Such narratives, or construals of international-​legal relations, may be reminiscent of and be influenced by Hollywood Western movies. Many contemporaries continue to experience and construe states, as well as the relations between them, anthropomorphically. This may be a relic of the fact that children “have the tendency to regard objects as living and endowed with will” (Piaget 1973[1926]: 194); that which Piaget refers to as “animism.” However, in this context, anthropomorphism might be a more appropriate term. As George Lakoff puts it: A state is conceptualized as a person, engaging in social relations within a world community. Its land-​mass is its home. It lives in a neighborhood, and has neighbors, friends, and enemies. States are seen as having inherent dispositions: they can be peaceful or aggressive, responsible or irresponsible, industrious or lazy. Lakoff 1992: 465

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The benefit of an anthropomorphist approach with respect to states was also recognized by Max Weber: For [certain] cognitive purposes—​for instance, juristic ones—​or for practical ends, it may … be convenient or even indispensable to treat social collectivities, such as states, associations, business corporations, foundations, as if they were individual persons. Thus they may be treated as the subjects of rights and duties or as the performers of legally significant actions. Weber 1978[1921–​22]: 13 Weber also explains how such anthropomorphic concepts can influence human behavior: These concepts of collective entities which are found both in common sense and in juristic and other technical forms of thought, have a meaning in the minds of individual persons, partly as of something actually existing, partly as something with normative authority.This is true not only of judges and officials, but of ordinary private individuals as well. Actors thus in part orient their action to them, and in this role such ideas have a powerful, often a decisive, causal influence on the course of action of real individuals. This is above all true where the ideas involve normative prescription or prohibition. Thus, for instance, one of the important aspects, of the existence of a modern state, precisely as a complex of serial interaction of individual persons, consists in the fact that the action of various individuals is oriented to the belief that it exists or should exist, thus that its acts and laws are valid in the legal sense. Weber 1978[1921–​22]: 14 Weber’s explanation of the psychological mechanisms whereby collective entities influence human behavior strikingly resembles Petrażycki’s approach. According to Petrażycki, the subjects of law—​including juristic persons, and states—​exist exclusively within the mind of the person who ascribes to them rights and obligations, and not in some kind of external reality (see “legal subject” in the Glossary): As in other fields of legal science, the sphere where the relevant phenomena are found and studied is transferred from the external world to the mind of the person experiencing legal processes and ascribing obligations and rights to various beings. Petrażycki 2011[1909–​10]: 188; Petrażycki 2000[1909–​10]: 330 What, therefore, does international law look like from the perspective of the psychological theory of law? In order to answer this question we should bear in

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mind that international law, like any other kind of law, is a phenomenon existing in the psyche of humans individually considered, with all the idiosyncrasies that accompany it. Thus, international law consists of the realistic representations or perceptions of legal subjects along with legal appulsions and repulsions concerning their current or potential actions. Unlike other forms of law where an external counterpart to a legal subject may sometimes be found,20 no subject of international law exists in the reality external to the human psyche, or, if it does exist externally it is merely an approximation of the object of representation within a given legal psyche. For example, in a person’s psyche, Russia is merely an object of representations, only loosely related—​if at all—​to the corresponding forms of social coordination to be found there. Further, there may be a discrepancy between, on the one hand, the existence or non-​ existence of a state, understood as a form of social coordination (e.g.,Taiwan today vs. Luxembourg during the Second World War,21 respectively) and, on the other hand, the experience and realistic representation of the “corresponding” subjects of international law. To understand the international-​legal psyche it is useful to compare it with a human psyche representing to itself the characters of a puppet show and their theatrical interactions. Those characters resemble in many respects the subjects of international law; a difference being that puppets are better perceivable and representable than states (compare Sesame Street’s Ernie with the United Kingdom). The subjects of international law can conduct different kinds of relations with one another, and above them are the “puppeteers”—​that is, the politicians and diplomats who “manipulate” them to achieve diverse goals.22 Of course, another important difference between a puppet show and international law is that in the latter the scholars and statespersons dealing with its “characters” (i.e., the states and the other subjects of international law) believe in their external existence, and thus are the objects of realistic rather than fantastic representations.23 For example, two diplomats involved in negotiations at the conclusion of a treaty (i.e., creation of a normative fact) view themselves as representatives of their respective states, which they believe exist in reality. This psychological approach has important implications for the theory of international law. From the standpoint of the psychological theory of law, all legal subjects (including natural persons, cf., note 14) are located, not in some sort of external reality, but within the psyche of the person who ascribes to them rights and obligations (Petrażycki 2000[1909–​10]: 325; 2011[1909–​10]: 185).24 Using as an illustration the legal judgment,25 “The treasury has such and such rights,” Petrażycki argues that its logical subject is to be searched for within the psyche of the person who formulates it. In other words, the “treasury” is nothing but the object of the representation made by the individual formulating that judgment (Petrażycki 2000[1909–​10]: 325–​6; 2011[1909–​10]: 185).

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Further, as stated above, legal subjects may include not only people, states, and corporations, but also rivers, stones, deities, and so on. As such, the psychological approach readily acknowledges the ascription of rights and obligations to “future generations,” “mankind,” “national minorities,” “indigenous peoples,” the “Sovereign Military Order of Malta,” etc. It would be futile to regard “future generations” as externally existing persons or things to which humanity owes certain obligations with respect to, say, the protection of the environment. Future generations are indeed real, but only in the mind of the individual ascribing rights to them, and it is a task of the theory of law to investigate how minds conceive of future generations. Indeed, some contemporary international-​legal scholars have concluded that the whole of humanity and future generations are subjects of international law. Think of the concept of the “common heritage of mankind,” which refers to certain territorial areas (e.g., the ocean floor and celestial bodies) that cannot be appropriated by the states (as legal duty-​ holders26), but which belong to humanity (as right-​holder) and should be held in trust for future generations (as right-​holders). Those who accept this notion also accept humanity and future generations as subjects of international law. Therefore, according to the psychological theory of law, the subjects of international law are objects of representation to be ascertained in the mind of a given person. This person may be a citizen, scholar, diplomat, or politician who makes decisions having consequences for international relations and people in general. From this perspective, an “unrecognized state” may have the quality of “being a subject of international law” for some, but not for all. To conclude, a few remarks are in order as to Petrażycki’s sociological conception of international law. From a sociological perspective—​that is, when considering international law as a form of social coordination—​Petrażycki regarded it as a kind of decentralized law (Petrażycki 2000[1909–​10], § 50: 584; 2011[1909–​10]: 320; see also 2000[1909–​ 10]: 582), operating between states (Petrażycki 2000[1909–​10], § 50: 584; 2011[1909–​10]: 320). In general, Petrażycki distinguished between centralized and decentralized law depending on whether there was a public authority coordinating certain activities within a group. Thus, from this standpoint, Petrażycki regarded both private law and international law as forms of decentralized law (Petrażycki 2000[1909–​ 10]: 581). The basis of decentralized laws, according to Petrażycki, is the principle noli me tangere, or “don’t tread on me” (Petrażycki 2011[1909–​10]: 322; Petrażycki 2000[1909–​10]: 586–​7). A similar principle in international law is the sovereign equality of states,27 which is fundamental to international-​legal relations. For Petrażycki, another principle in international law is pacta sunt servanda, “agreements must be kept,” which he considered essential to everything that is

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excluded by noli me tangere (Petrażycki 2011[1909–​10]: 322; Petrażycki 2000[1909–​ 10]: 587).28

The Legal-​Dogmatic Dimension In addition to the psychological and sociological dimensions found in Petrażycki’s writings, is the legal-​dogmatic dimension.29 By legal dogmatics—​as distinguished from legal theory and sociology, both of which Petrażycki viewed as objective-​cognitive sciences—​Petrażycki recognized a subjective-​relational science30 based on the normative facts adopted by a given dogmatician31 (hence the subjective nature of this science) for the purpose of formulating normative judgments on behaviors or situations. A dogmatic science of international law is based on normative facts (or dogmas) from which to derive normative judgments and norms.32 If a legal dogmatician adopts multiple normative facts, two contradictory judgments may be correct simultaneously, within the same legal dogmatic science. For example, it may occur that the same state (e.g., Kosovo) is to be regarded as a subject of international law according to a certain normative fact but is not to be regarded as such according to a different one, provided that both normative facts are adopted as binding by the same dogmatician and she does not adopt a third principle or normative fact that removes the contradiction. From a Petrażyckian perspective, dogmaticians of international law extract norms from normative facts. Dogmatics of international law should eschew psychological and sociological issues, and consider only the features, history, and content of the chosen normative facts. Arguably, Petrażycki’s dogmatics of international law is a sort of “pure theory of law,” one that Fittipaldi (2013) maintains is even purer than Kelsen’s. Fittipaldi further asserts that a consistent development of Petrażycki’s ideas requires that it is not normative facts that should be regarded as dogmas but the dogmatician’s choice of certain normative facts as ultimate premises. He also stresses that Petrażycki mentions normative legal sciences of which legal dogmatics and intuitive legal sciences are subclasses (Petrażycki 1939[1925–​26]: 111) and concludes that there is no reason to rule out normative legal sciences based both on the normative facts chosen by a dogmatician and on her own intuitive legal convictions. Finally, Fittipaldi proposes using the term “legal dogmatics in a broad sense” to refer to such a mixed normative science. An example of such a legal dogmatics in the broad sense is found in 17th-​ century Dutch jurist, Hugo Grotius’s On The Law of War and Peace (1913[1646]), where he proposes that there is a “voluntary law, deriving its origin from will” (lib. 1, cap. 1, § 13)—​that is, in Petrażyckian terms, a form of positive law—​and a natural law—​that is, a form of intuitive law.33 Today, the dogmatics of international law cannot be a purely positive normative science. It must be a mixed science that adopts as dogmas not only normative facts (e.g., customs, treaties) but also intuitive-​legal principles (e.g., the

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sovereign equality of states, the non-​use of force in international relations, and the respect for human rights such as the right not to be tortured).34 An example of the use of such intuitive-​legal principles is found in the 1945 opening statement to the International Military Tribunal at Nuremberg by U.S. prosecutor Robert H. Jackson, who, in justifying the legitimacy of the Nuremberg trials against the Nazi war criminals, said: “They took from the German people all those dignities and freedoms that we hold natural and inalienable rights in every human being” (Jackson 1945). The Nuremberg trials themselves were partly based on intuitive-​ legal principles, expressed through the concept of justice.35 Now that we have specified the concept of dogmatics of international law, we can briefly present Petrażycki’s theoretical ideas on its social function36: here the unifying legal standard is the corresponding positive law (founded chiefly on international legal customs and treaties). Along with its general social function, legal dogmatics endeavors to complete and … unify positive law[37] … [I]‌t is only the … system of legal propositions founded on relevant normative facts that legal dogmatics recognizes as the binding system of international law, or simply as “international law.” As for individual opinions that differ from the relevant positive propositions and generally are not based on the relevant normative facts (e.g., intuitive-​legal opinions[38]), international-​legal dogmatics, in accordance with its unifying purpose …, ignores or rejects them as … being devoid of juridical significance [and] unrelated to law (i.e., to the legal standard it develops and it alone recognizes as binding … ). If … a state were unwilling to recognize an established international-​legal custom opposing its own differing … intuitive-​legal … conviction, jurists [i.e., legal dogmaticians] would say that [its] views … contradict international law and thus have no juridical significance. Petrażycki 2000[1909–​10]: 197; 2011[1909–​10]: 146 In other words, from a legal-​theoretical perspective, Petrażycki regarded the opinion of the officials of that “deviant” state as full-​fledged international-​legal phenomena like any other. On the other hand, he underscored the positive role of an international-​legal dogmatics, which—​by adopting the wrong-​but-​publicly-​ beneficial principle of non-​contradiction and rejecting those “deviant” opinions (mostly based on international-​legal intuitive convictions)—​contributes to the emergence of unifying legal standards (on the role of the principle of non contradiction in Petrażycki’s legal dogmatics, see Fittipaldi 2016a: 503, and “legal dogmatics” in Glossary). Petrażycki emphasized the social importance of international-​legal dogmatics because in inter-​state relations doubts and disagreements may lead to conflict, even war (Petrażycki 2000[1909–​10]: 193–​4; 2011[1909–​10]: 144). He was convinced that law’s unification and the works of legal dogmaticians could prevent these

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conflicts (Petrażycki 2000[1909–​10]: 194; 2011[1909–​10]: 144–​5). This holds true for both national and international-​legal dogmatics: The system of legal propositions developed by legal dogmatics … disregards individuals’ financial, political, or other interests …; curtails … personal opinions and conflicts, tendentious interpretations, arbitrariness, the trampling of the interests of the powerless, etc. This is legal dogmatics’ rationale and lofty goal. Petrażycki 2000[1909–​10]: 194; 2011[1909–​10]: 145 In other words, Petrażycki believed that, in order to minimize international conflicts, international-​legal dogmatics must develop precise concepts, fill gaps, and resolve contradictions that may arise from the interpretation of customs39 and treaties. Indeed, international normative language is replete with such indeterminate expressions as “aggression,” “self-​defense,” “war,” “intervention,” and “combatant” (Koskenniemi 1989: 22). Thus, it is necessary to develop a rigorous dogmatics of international law following the model of mathematics—​ a discipline that Petrażycki regarded as akin to legal dogmatics (Petrażycki 2000[1909–​10]: 195; 2011[1909–​10]: 145). Such an axiomatized legal dogmatics should state precisely (1) the dogmas (i.e., legal sources and ultimate principles) adopted by most international scholars, (2) the concepts they use, and (3) the methods (e.g., reductio ad absurdum, analogy, implied powers) employed in proving legal-​dogmatic statements based on those dogmas and concepts.

Three Sciences and Concepts of International Law Based on Petrażycki’s writings, we can identify three concepts of international law: (1) a psychological concept, (2) a sociological concept, and (3) a dogmatic concept. Listed in accordance with their logical hierarchy these autonomous concepts must be elaborated separately by the respective disciplines as the psychology (or “theory”—​in Petrażycki’s term) of international law, the sociology of international law, and the dogmatics of international law. The dogmatics of international law, which legal scholars are most concerned with, conceives of international law as a system of legal norms derived from certain normative facts and, possibly, certain intuitive legal convictions.40 It is a subjective-​relational science based on the dogmatician’s choice of normative facts and intuitive-​legal principles (cf. Chapter 5, in this volume). As for the psychology and sociology of international law, both are to be regarded as objective-​cognitive sciences (cf. again Chapter 5, the “Petrażycki’s New Classification of the Sciences” section). The psychology of international law conceives of international law as consisting of legal emotions, along with realistic

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representations and their objects (e.g., the subjects of international law and their behaviors—​to which legal emotions are directed).41 Sociology, by contrast, treats international law as a form of social coordination between actual groups (states, international organizations, etc.).42 International law, as a sociological concept, is related to Petrażycki’s organizational and distributive functions of law (see Petrażycki 2000[1909–​10], §§ 11–​2; 2011[1909–​10], Sections 15–​6). By virtue of its organizational function, the relations between the states of the international community become increasingly structured and organized, as evident in the formation of different international organizations (the UN, the EU, etc.). By virtue of law’s distributive function, the territories of the various world regions are assigned to subjects of international law (chiefly, states) or are regulated by treaties such as the Antarctic Treaty. Further, various organizations of international trade, such as, for example, the World Trade Organization, combine both functions. We can detect some signs of the emergence of what Petrażycki regarded as official43 international law, that is, the application by superstate authorities of their legal convictions in their official capacity. These applications are intended to serve the states these authorities serve. This phenomenon pertains to the sociology of international law. Today, in international-​legal relations, EU law resembles that of a federal state. There are also the UN Security Council’s resolutions that are experienced as legally binding for UN member-​states. In addition, there is the internal law of international organizations like the World Trade Organization and the International Monetary Fund. To be sure, these relatively new legal phenomena could be seen as competing forms of an emerging international official law. Moreover, sociology should also investigate unofficial international law. Petrażycki predicted that “in the future development of international law a greater role w[ou]l[d]‌be played by … permanent international courts, both general and specialized” (Petrażycki 2000[1909–​10], § 42: 457). Courts may be official or unofficial legal phenomena, depending on whether their members are representatives of a superstate organization such as the UN and its court, namely, the International Court of Justice or the EU and its courts. All in all, contemporary international law seems to follow the same trajectory of development as national law. This means that in it we can discern not only positive and intuitive laws but also the gradual development of forms of official law.

Conclusion Despite its tremendous heuristic potential, Petrażycki’s psychological theory of law remains virtually unknown among international-​legal scholars. It is my conviction that Petrażycki’s theory, along with a sociology and a dogmatics of international law based on it, could revolutionize international-​legal scholarship and render a

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completely new paradigm. In any case, contemporary scholarship in international law cannot develop further without considering the alternative provided by the psychological theory of law.

Notes 1 I express my gratitude to Edoardo Fittipaldi for his invaluable advice, critique, and support that allowed me to substantially improve this chapter. 2 In this connection, Petrażycki believed that any attempt to define national law in reference to the state results in a definitio per idem because states are themselves made up of legal rules (see Timoshina [2016]: 533, note 12). On the concept of definitio per idem, see Glossary. 3 To be sure, this is also the case for the first type of definition as long as other subjects of international law are concerned. However, as already pointed out, its main shortcoming is its inability to distinguish international legal norms from the broader set of international social norms. It is worth recalling that Alf Ross examined the definitions of international law current at his time and concluded that they were circular in character: We have here a vicious circle: in order to determine whether or not a certain rule is international we must know whether or not the legal community bound by it is a state. But in order to decide this question, we must know precisely whether or not the rule in question is international. The term “International Law” is defined with reference to the term “state” and the definition of the term “state” again refers back to the term “International Law.” A definition thus biting on its own tail is circular. The consequence is that on the point in question the definition is in reality a blank. Ross 2006[1947]: 12 4 Contemporary “deniers of international law” argue that given its lack of power over states, international law is “at best a set of self-​imposed limitations by states themselves, a ‘mere system of promises’ that can come unwound at states’ discretion” (Mégret 2012: 74). As for 19th century’s deniers of international law, suffice it to say that John Austin (1832: 132) regarded it as a “positive morality” only. Certain non-​positivist approaches also arrive at the same conclusion. For example, Max Weber identified law through the existence of an organized enforcing agency (on such theories, see Petrażycki 2000[1909–​10], § 19: 223). Thus, it is no wonder that in regard to international law Weber wrote that “it has often been denied that international law could be called law, precisely because there is no legal authority above the state capable of enforcing it. In terms of the present [i.e., Weber’s] terminology this would be correct” (1978[1921–​22]: 35). 5 The main problem with the coercion theory is the infinite regress of sanctions it seems to involve. This issue was already addressed by Leon Petrażycki—​as expressly admitted by Kelsen (1949, 28–​29, note †). On Petrażycki’s critique of the theory of coercion, see Timoshina (2016: 533, note 13). 6 In other words, Kelsen, rather than defining legal norms as norms that in case of non-​ compliance are backed by a (secondary) norm providing for coercion, defines them as norms that, if some event obtains, mandate or authorize coercion. 7 This is what Petrażycki called “legal physiology” as distinct from “legal pathology,” that is, conflicts, whether or not they result in official litigation.

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8 On Petrażycki’s legal emotions, see Chapter 7, in this volume. 9 Petrażycki would have called this third approach “naive nihilism” (Petrażycki 2000[1909–​10], § 31: 329; 2011[1909–​10]: 186, see also Chapter 5, in this volume). 10 By a realistic representation, as opposed to a fantastic one, Petrażycki means a representation, the object of which is believed to exist by the person who produces it (see Fittipaldi 2016a: 458, see also Glossary). What matters, in characterizing a representation as realistic, is not its objective truth but only the experiencer’s belief in its truth. 11 This conception is similar to Weber’s idea that sociology should take into account the representations (Vorstellungen) of states to be found both within officials’ and people’ heads (Köpfe, 1978[1921–​22]: 14). On this issue, see Chapter 5, in this volume. 12 Petrażycki mostly speaks of “social” rather than of “public” groups and authorities. In this connection, though, “social” (social’nyj) and “public” (publičnyj) are synonyms. For the sake of clarity, the term “public” has been used whenever by “social” Petrażycki means “public.” (Note by eds.) 13 To be precise, Petrażycki distinguished public groups into (1) kinship public groups (families, tribes, and the like), namely, groups united by the belief in the existence of kinship legal relationships between their members, and (2) non-​kinship public groups, or “states” (Petrażycki 2000[1909–​10], § 12: 177, § 50: 584, 2011[1909–​10]: 134 f.). 14 To be clear, according to Petrażycki, also natural persons can maintain legal relationships—​and so, play a role in motivational processes—​only as long as they are objects of perceptions or realistic representations. 15 On Petrażycki’s distinction between states and other public groups, see note 13. 16 Such political decisions may be forms of “normative facts” in Petrażycki’s sense. 17 As Max Weber puts it: one of the important aspects of the existence of a modern state, [understood] as a complex of social interaction of individual persons, consists in the fact that the action of various individuals is oriented to the belief that it exists or should exist. Weber 1978[1921–​22]: 14 18 Enlil was the chief deity of the Sumerian pantheon. 19 In the Middle Ages, though, it was quite common that conflicts between city-​states were construed as conflicts between the patron saints protecting those city-​states (cf. Herzfeld 2009: 92). 20 From a Petrażyckian perspective, even in the case of, say, Ivan’s experiencing and realistically representing to himself the really externally existing (in reference to Ivan) Marko owing $10 to the really externally existing (in reference to Ivan) Mariya, the legal subjects proper are exclusively Mariya and Ivan as objects of Ivan’s realistic representations and not their externally existing counterparts (2010[1908], § 2: 396–​401). 21 In the case of Belgium and France, between 1940 and 1944, forms of coordination continued in the colonies. 22 In international relations war was anthropomorphically viewed as a duel between persons, and international law in the form of “laws of war” was regarded as a sort of “laws of duel.” For example, the Israeli international lawyer Yoram Dinstein draws a comparison between international law and the law of duel: It is noteworthy that, as pointed out already by Grotius, the Latin word bellum is derived from the more ancient term duellum. For centuries, international law

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treated war in the same manner that domestic law used to deal with the duel. War, like a duel, was viewed with toleration. The parity of contenders was taken for granted, and the sole concern was about adherence to criteria of “fair play”.

Dinstein 2012: 163 23 On this crucial concept, see note 10. 24 As previously stated, this is not to deny that some sort of external counterpart of legal subjects may also exist. However, in order for legal persons to be motivationally relevant, they must first and foremost exist within the actors’ psyches. 25 To be precise, Petrażycki distinguishes judgments from the sentences expressing them. In order to keep things simple, I will put judgments in quotes. On Petrażycki’s concept of judgment, see Glossary. 26 On legal duty-​holders and right-​holders, see Glossary. 27 According to Petrażycki, noli me tangere is typical of international law (Petrażycki 2000[1909–​10]: 586–​7). 28 In speaking of fundamental principles, I am not adopting a legal-​dogmatic approach (see the next section) but a theoretical one.This means that I refer to those principles as (psychical) normative judgments or dispositions to be found within statespersons and laypeople’s psyches, not to norms that they should experience based on certain normative facts and/​or principles chosen by a particular legal dogmatician (see next section). 29 Owing to space limitations, I will not discuss a fourth dimension, that is, the legal-​ political one. 30 On the Petrażyckian concepts of objective-​cognitive and subjective relational sciences, see Chapter 5, in this volume and Glossary. 31 On this concept, see Glossary. 32 On Petrażycki’s concept of norm, see Chapter 6. 33 Petrażycki regarded natural law systems as formal arrangements of the personal intuitive-​legal convictions of their creators, that is, as forms of “dogmatics of intuitive law” (1902: 1798). He observed that “such dogmatic expositions of one’s own intuitive law are typically made without a parallel exposition of the prevailing positive law concerning the same issues” (ibid.). As for Grotius’ treatise, Petrażycki noted that, over time, it began to be experienced as a normative fact by theorists and practitioners of international law, and so gave rise to that form of positive law that he called “book law” (Petrażycki 2000[1909–​10]: 466; 2011[1909–​10]: 281). 34 Based on Petrażycki’s definition of intuitive law (see Glossary), in order for a legal principle to be an intuitive-​legal principle, the dogmatician must be convinced that it does not need any justification in terms of normative facts (e.g., a treaty on human rights). A connected, though slightly different problem is whether to regard the principle of pacta sunt servanda as a hypothetical norm having treaties as legal hypotheses or as a norm on normative facts (a “normative-​factical” norm—​to employ Fittipaldi’s [2015] terminology). On this issue, see also Fittipaldi (2013: 57, note 19). 35 On the connection between intuitive law and justice, see Petrażycki 2000[1909–​10], § 37: 404; 2011[1909–​10]: 241. 36 On the function of legal dogmatics, according to Petrażycki, see Fittipaldi (2013). 37 In other words, according to Petrażycki, legal dogmatics has not only to reconstruct the exact texts of legal treaties or to ascertain how in actual reality a certain custom looks like, but also to fill legal gaps and solve contradictions between the different normative facts adopted as binding by the legal dogmatician. See below in this section.

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38 As can be seen, Petrażycki is referring not only to the legal-​dogmatic opinions based on normative facts other than those mostly adopted by international-​law dogmaticians (e.g., papal encyclicals, which usually are not adopted as sources of international law) but also to those based on a given legal dogmatician’s intuitive legal convictions. 39 From a Petrażyckian perspective, all normative facts, including custom, require interpretation, and the resulting interpretations may conflict with one another. 40 On Petrażycki’s concept of norm, as distinct from that of normative fact, see Chapter 6, in this volume. 41 See the “Definition of International Law in the Psychological Theory of Law and Its Implications” section. 42 In other words, it is not concerned with objects of realistic representations within social actors but with actual social phenomena produced by actual social actors. 43 On Petrażycki’s definition of official law, see Glossary and Fittipaldi (2016a: 499).

References Austin, John, 1832. The Province of Jurisprudence Determined, London: John Murray, Albemarle Street. Dinstein, Yoram, 2012. War, Aggression and Self-​ Defence, Cambridge: Cambridge University Press. Fittipaldi, Edoardo, 2013. Nauka na službe u principa zakonnosti: kritičeskaja zaščita koncepcii juridičeskoj dogmatiki L’va Petražitskogo. Pravovedenie, 5 (310): 48–​76. English original Leon Petrażycki’s Conception of Legal Dogmatics as a Science at the Service of the Principle of Legality: A Critical Defense, available at https://​unimi.acade​mia.edu/​Edoard​ oFit​tipa​ldi/​Pap​ers (retrieved January 7, 2018). Fittipaldi, Edoardo, 2015. Love,Anankasticity, Human Rights:The Perspective of Petrażyckian Continental Legal Realism. In Piotr Szymaniec, The Principle of Proportionality and the Protection of the Fundamental Rights in European States. Wałbrzych: Wydawnictwo Państwowej Wyższej Szkoły Zawodowej im. Angelusa Silesiusa w Wałbrzychu. Fittipaldi, Edoardo, 2016a. Leon Petrażycki. In Enrico Pattaro and Corrado Roversi (eds.), Legal Philosophy in the Twentieth Century:The Civil Law World, Berlin: Springer. Fittipaldi, Edoardo, 2016b. Jerzy Lande. In Enrico Pattaro and Corrado Roversi (eds.), Legal Philosophy in the Twentieth Century:The Civil Law World, Berlin: Springer. Frankfort, Henri, John A. Wilson, and Thorkild Jacobsen, 1946. Before Philosophy. The Intellectual Adventure of Ancient Man. An Essay on Speculative Thought in the Ancient Near East, Chicago, IL and London: The University of Chicago Press. Grotius, Hugo (James Brown Scott ed.), 1913[1646]. De Jure Belli ac Pacis Libri Tres, in quibus Jus Naturae & Gentium, item Juris praecipua explicantur, Washington, DC: Carnegie Institution of Washington. Hart, Herbert L.A., 1994. The Concept of Law. 2nd edition, Oxford: Clarendon Press. Herzfeld, Michael, 2009. Evicted from Eternity:The Restructuring of Modern Rome, Chicago, IL and London: The University of Chicago Press. Jackson, Robert H., 1945. Opening Statement before the International Military Tribunal. www. rob​erth​jack​son.org/​spe​ech-​and-​writ​ing/​open​ing-​statem​ent-​bef​ore-​the-​intern​atio​nal- ​ milit​ary-​tribu​nal/​ (accessed January 21, 2018). Kelsen, Hans, 1949. GeneralTheory of Law and State, Cambridge, MA: Harvard University Press. Kelsen, Hans, 1967[1960]. Reine Rechtslehre. 2nd edition. English translation Pure Theory of Law, Berkeley, CA and Los Angeles, CA: University of California Press.

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Koskenniemi, Martti, 1989. From Apology to Utopia. The Structure of International Legal Argument, Helsinki: Lakimiesliton Kustannus, Finnish Lawyers’ Publishing Company. Lakoff, George, 1992. Metaphor and War: The Metaphor System Used to Justify War in the Gulf. In Martin Putz (ed.): Thirty Years of Linguistic Evolution, Amsterdam: John Benjamins.. Mégret, Frédéric, 2012. International Law as Law. In James Crawford and Martti Koskenniemi (eds.), The Cambridge Companion to International Law, Cambridge: Cambridge University Press. Petrażycki, Leon, 1902. Po povodu dissertacii P. I. Novgorodtseva: “Kant i Gegel’ [Hegel] v ih učenijah o prave i gosudarstve. Pravo, 41: 1793–​804. Petrażycki, Leon, 1904. O motivah čelovecheskih postupkov, v osobennosti ob etičeskih motivah i ih raznovidostiah, St. Petersburg: Tipografija E.L. Porokhovschikovoj. Petrażycki, Leon, 1907. O motivah čelovecheskih postupkov, v osobennosti ob etičeskih motivah i ih raznovidostiah. German translation of an unpublished improved version of Petrażycki 1904, Über die Motive des Handelns und über das Wesen der Moral und des Rechts, Berlin: Müller. Petrażycki, Leon, 1939[1925–​ 26]. Nowe podstawe logiki i klasyfikacia umiejętnośći, Warsaw: Nakładem Towarzystwa im. Leona Petrażyckiego. Petrażycki, Leon, 2000[1909–​10]. Teorija prava i gosudarstva v svjazi s teoriej nravstvennosti. 2nd edition, St. Petersburg: Lan’. Petrażycki, Leon, 2010[1908]. Vvedenie v izučenie prava i nravstvennosti. Osnovy èmocional’noj psihologii. In Leon Petrażycki (Elena V. Timoshina ed.), Teorija i politika prava. Izbrannye trudy, St. Petersburg: Universitetskij Izdatel’skij konsorcium. Petrażycki, Leon, 2011[1909–​10].Teorija prava i gosudarstva v svjazi s teoriej nravstvennosti. 2nd edition. Abridged English translation Theory of Law and State in Connection with a Theory of Morality. In Leon Petrażycki (Nicholas S. Timasheff ed.), Law and Morality: Leon Petrażycki, with a new introduction by A. Javier Treviño, Piscataway, NJ: Transaction Publishers. Piaget, Jean, 1973[1926]. La Représentation du monde chez l’enfant. English translation The Child’s Conception of the World, London: Paladin. Ross, Alf, 2006[1947]. A Textbook of International Law. General Part, Clark, NJ: The Lawbook Exchange, Ltd. Timoshina, Elena V., 2016. Max Lazerson’s Theory of Law. In Enrico Pattaro and Corrado Roversi (eds.), Legal Philosophy in the Twentieth Century: The Civil Law World, Berlin: Springer. Weber, Max, 1978[1921–​ 22]. Wirtschaft und Gesellschaft. English translation edited by Guenther Roth and Claus Wittich, Economy and Society, Berkeley, CA: University of California Press.

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11 LEON PETRAŻYCKI’S VIEWS ON RELIGION1 Piotr Szymaniec

Introduction The 19th century brought considerable interest in issues of religion. G.W. F. Hegel (1840) first introduced the philosophy of religion as a separate subdiscipline of his “absolute spirit” (absoluter Geist) philosophy. During the same time, Benjamin Constant published the first comprehensive works on the phenomenon of religion (1999[1824–​31]) in which he identified its two components: the religious sentiments of individuals (le sentiment religieux)—​universal in nature, according to him—​and the historically changing religious forms. In the second half of the 19th century, Max Müller, a philologist, greatly contributed to research on primitive religions. Subsequently, such issues became the subject of the then emerging social studies—​especially sociology. The contributions of Émile Durkheim and Max Weber in this field are generally known. Somewhat later, in the 1910s, a new trend emerged in religious studies connected to the philosophy of Edmund Husserl: the phenomenology of religion, the founders of which included Rudolf Otto and Max Scheler. Leon Petrażycki could hardly abstain from addressing the issue of religion, which absorbed so much of his contemporaries’ attention. The aim of this chapter is to present Petrażycki’s position against the background of the religious research of his time and to highlight his original contributions to those investigations. Given that Petrażycki’s analyses concerning religion are closely connected to his conception of law, it is first necessary to briefly present those aspects of his conception that relate to religion.

DOI: 10.4324/9781351036740-15

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Petrażycki’s Criticism of Utilitarianism and His Social Ideal Petrażycki presented a comprehensive criticism of legal positivism and proposed that it was necessary to go beyond the positivist definition of law. He observed that the positivists of his time either avoided defining law or else engaged in tautological reasoning (1959[1908], § 1: 26–​9). Petrażycki also maintained that “the official jurisprudence [i.e., the jurisprudence concerned with state law] tends to exclude from the sphere of law all that, according to the official law of a given level of culture, lies outside state intervention or regulation” (1909–​10[1959–​60], vol. 1, § 17: 357). Petrażycki further criticized Rudolf von Jhering’s “interest theory” that he regarded as a variant of utilitarianism.2 In his view, such theories did not address the question of the essence of law and attempts to build thereupon a general theory of law were futile. Petrażycki believed that von Jhering offered a superficial and shortsighted individualistic view based on a methodology that could only analyze particular aspects of certain institutions of private and commercial law. Instead, Petrażycki held that it was necessary to begin from the perspective of the overall economy of society3 and to consider the educational effects of legal rules on people’s psyche.4 This was how Petrażycki dealt with the 19th-​century Romanist tradition, which, according to him, advocated an individualist point of view. Indeed, Petrażycki’s work compared to the collectivist and corporativist theories of the late 19th and early 20th centuries.5 Petrażycki rejected utilitarianism not only because of his economic views but also because he held that legal policy should pursue, not the maximization of happiness, but the social ideal of love, which—​in reference to Kant—​he regarded as an axiom of practical reason (1968[1896–​97]: 25).According to Petrażycki, Jhering’s flat “utilitarianism” was one of the many symptoms of the moral sickness of his time and, based as it was on the category of interest, justified colonial expansion and the oppression of certain ethnic groups (1936[1901]: 7). Some commentators have discerned religious overtones in Petrażycki’s social ideal. That was basically what a prominent lawyer, Boris N. Chicherin, concluded in reference to Petrażycki’s earliest works, Theory of Incomes (1893–​95, vol. 2: 475 ff.—​in German) and The Rights of the Good Faith Possessor to Incomes from the Viewpoints of the Dogma and the Policy of Private Law (1897, in Russian). Chicherin held that the ideal of love stemmed from St. Paul’s teachings (1900: 4–​5, cf. also Dutkiewicz 1980: 145 ff. and Johnson 1975: 53 f.). Such observations by Chicherin and others point to Petrażycki’s naivety as well as to his lack of political realism.6 However, human rights can also be similarly criticized. Further, it is quite simplistic to maintain that Petrazycki’s social ideal of love is nothing but a transformation of St. Paul’s call.

Petrażycki’s Ontology of Law While Petrażycki’s legal policy project cannot be based on methodological individualism,7 given that he considered the influence of law on society as a whole, his

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ontology of law, however, was premised on a strict methodological individualism. This is due to the fact that his point of departure was the individual’s psychological experiences. That is why Edoardo Fittipaldi (2012: 9–​18) defends Petrażycki’s theory of law as a form of legal solipsism, without using the phrase in a pejorative sense as other critics have done. Equally plausible is to see Petrażycki as a supporter of legal pluralism. Petrażycki’s primary research method was that of observation. He distinguished external observation, which involves the five senses, from internal observation, or introspection, which involves observation of one’s own psychical experiences. He regarded introspection as the only way to observe legal phenomena directly (1959[1908], § 3: 58–​71; 2011[1907]: 12–​7). Petrażycki believed that people’s motivations are based on emotions, or impulsions. These are bilateral experiences that have both a passive and an active nature. Without delving further into Petrażycki’s classification of motivations, suffice it to say that he distinguished between normative and teleological ones. In the case of teleological motivation, an action is experienced as a means to an end, whereas in the case of normative motivation a repulsion or appulsion toward an action is experienced for its own sake. Petrażycki reduces normativity to repulsive or appulsive emotions that are prompted by the perception or representation of certain actions.8 He calls the combination of action representations/​perceptions and normative emotions “normative judgments.” Their contents he calls “norms” (on which, see Chapter 6, in this volume [parenthesis by the eds.]) Ethical judgments, as a subclass of normative judgments characterized by their “mystic-​authoritativeness,” are further distinguished into moral and legal ones. The difference is that a legal judgment, unlike a moral one, involves a repulsion or an appulsion toward a given action along with the idea that some other party is entitled to its performance or non-​performance, respectively.9 For this reason, Petrażycki also calls them “imperative-​attributive judgments,” and their contents “imperative-​attributive norms.”10

Petrażycki’s Definition of Religion and Its Connection to Law According to Petrażycki, while law and religion are different phenomena, they sometimes overlap. He says: at certain stages of culture, law is a very important element of religion, and has a more or less strongly marked religious, sacred character.There are additional reasons why, from a scientific perspective, it is absolutely impossible to distinguish law from religion as, for example, different species of some single common genus (genus proximum). 1959[1908], § 1: 36 In what follows, I explain why Petrażycki did not distinguish law and religion as two different species within the same genus proximum. But, first, I would like to

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stress that Petrażycki also did not deny that law and religion are different phenomena. Rather, he maintained that law regulates people’s relations with each other, whereas religion focuses on people’s relationship with supernatural reality. He also held that the relationship between law and mores (nravy, in Russian, Sitte, in German) resembles that between law and religion. However, because for Petrażycki, law and morality are two species of a single genus, they are inversely correlated with each other: as one increases the other decreases. This, however, is not the case with religion. According to Petrażycki, religion is a whole comprising the most diverse psychical experiences: different emotions (mystic fear, respect, love, etc.), different emotional-​ cognitive couplings, such as judgements and convictions, not of a practical nature ([i.e.,] concerning proper conduct), but of a purely theoretical one (for example, “faith” in the existence and origin of gods, their mutual relations and those of humans, their properties) etc., as long as these … psychical experiences are connected with representations of certain higher beings, [or] deities, as real. 1959–​60[1909–​10], § 17, vol. 1, 352–​3 It should be noted that Petrażycki defines religion narrowly, as relating to the concept of deity. Defining religion in reference to a deity was common among 19th-​century thinkers such as Benjamin Constant. As for the notion of “mystic fear,” it suggests associations with the phenomenology of religion.11 However, in contrast to the phenomenologists, Petrażycki did not reduce the psychology of religion strictly to the experience of a deity (or sanctity).12 Petrażycki’s definition of religion is different from that proposed by Émile Durkheim (1995[1912]), who identified two constitutive elements of religion. The first involves the presence of “a unified system of beliefs and practices related to sacred things” (44). In employing the concept of “sacred things” (choses sacrées),13 Durkheim avoids seeing religion as exclusively the belief in supernatural beings or deities. After all, sacred things are “set apart and forbidden,” and under some sort of social taboo. They may be either material—​animals, natural objects—​or immaterial things ascribed by believers to a reality different from human reality. Thus, Durkheim’s definition is broader in terms of its subject matter, and therefore richer, than the one formulated by Petrażycki. Under Durkheim’s approach, the other constitutive element of religion is the existence of a “moral community” (communauté morale) of believers, the church (l’Église) (ibid.). As such, the social aspect of religion is of key significance for him. It is noteworthy that the social is evident on several fronts: the determination of what is regarded as sacred; practices concerning what is sacred; and, finally, the community of believers, which is a kind of all-​encompassing superstructure. Though Durkheim does not deny the psychological aspect of religion, or beliefs, he claims that it, too, is socially

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determined. This determination is direct because beliefs have a collective nature and are imposed on individuals by groups (ibid.: 44, fn. 68).14 Whereas Durkheim downplayed the significance of religion’s psychological element, Petrażycki saw it as its main factor.15 It should be noted that Petrażycki does not deny the social aspect of religion. In particular, the social emerges when he analyzes its practical manifestation. To this end, Petrażycki distinguishes between teleological and normative rules of conduct on the basis of his differentiation between normative and teleological motivation (see above). Religious-​utilitarian rules are those which concern “the most favorable and the most appropriate relation to deities in order to obtain their assistance with regard to a certain matter” (1959–​60[1909–​10], vol. 1, § 17: 353). This assistance may pertain to fighting enemies, acquiring wealth, having many children, life after death, or recovering from disease. In this context, Petrażycki observes that less developed societies regard medicine as a “religious technique” that rids a sick person’s body of bad beings.16 Religious normative rules also consist of two categories. One involves aesthetic norms having to do with the construction and ornamentation of temples, the other involves ethical norms that, as we know, Petrażycki divides further into purely imperative, or moral rules, and imperative-​attributive, or legal ones. Thus, while religion does contain a legal element, it cannot be entirely reduced to law. Furthermore, according to Petrażycki, several religious rules also rely on mores and traditions (ibid.: 353–​4).17 Thus, for Petrażycki, there is a certain interdependence between the psychological and social aspects of religion. Since Petrażycki asserts that “a number of the most diverse elements of religion belong to completely different areas of the psyche other than law and morality” (1959–​60[1909–​10], § 11, vol. 1: 354), law and morality cannot be directly traced to religion. However, because Petrażycki believed that the legal element is often present in the religious psyche, it should be asked what he regarded as the significance of law, among all the components of religion.

Religious and Legal Psyche According to Petrażycki, ethical emotions, a class of emotions that includes moral (purely imperative) and legal (imperative-​attributive) emotions, are regarded by those who experience them as stemming from an unknown source, “outside our prosaic ego.” Thus, what makes ethical impulsions unique is their “mystic-​ authoritative” nature, which means “a mystic coloration not without a tinge of fear” (1959–​60[1909–​10], § 2, vol. 1: 49, 2011[1909–​10]: 38). People’s legal psyche acts in such a way that when they experience ethical emotions they subsequently project them outside themselves and this results in the experience of the voice of mystic entities such as ancestors’ spirits, deities, or, finally, God. Thus, a psyche of this kind ascribes ethical commands and prohibitions to “higher-​order” entities

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(1959–​60[1909–​10], § 2, vol. 1: 50, § 4, vol. 1: 2011[1909–​10]: 38, 53). In this way, commands and prohibitions gain special strength within those who also experience these specific ethical emotions. Such a higher-​order being may be God or a deity (in which case we can speak of a “religious psyche” proper), but also, in the modern context, “nature” (in natural law theories), “reason” (as was the case during the Enlightenment), “general will” (in Rousseau’s philosophy), the “national spirit” (in the sense of Romanticism and the German Historical School of Jurisprudence), or the state itself (positivism in Petrażycki’s time, who, incidentally, argued against it) (1959–​60[1909–​10], § 2, vol. 1: 100–​1, vol. 2: 240, 2011[1909–​10]: 222; see also Epstein 1955: 128). Petrażycki treats all higher-​ order beings similarly, calling them “fictitious things” (1959–​60[1909–​10], § 2, vol. 1: 100, see also Ossowski 1935b: 50–​5). Therefore, according to Petrażycki, the religious justification for law has no special significance and should be treated the same way as the justifications of legal experiences that invoke the state or the general will.18 Petrażycki goes on to note that legal emotions found in religion not only evoke imperative norms, whereby certain duties are ascribed to deities, but they also have an attributive function, whereby certain rights are ascribed to them. Furthermore, legal norms are experienced as having greater authority than the deities themselves. As Petrażycki puts it: “above these [divine] beings … is the higher authority of legal norms, which endow them with various benefits” (1959–​60[1909–​10], vol. 1, § 5: 173, 2011[1909–​10]: 85). In other words, according to Petrażycki, when believers ascribe powers and rights to deities, they do so by virtue of legal norms whose authoritativeness for them is superior to deities. Thus, if deities are experienced as power-​and right-​holders, it is because legal norms are experienced as more authoritative than the deities themselves. Therefore, Petrażycki also claims that, paradoxically, even in those cases where a deity is experienced as the source of a legal emotion—​e.g., because that deity is believed to have issued a commandment—​the very belief that the deity is entitled to enact commandments involves the belief in a norm that is higher than the deity itself. It is due to this superior norm that that deity has the authority to enact commandments and one is bound to obey them. Besides, such emotions ascribe to deities not only rights but also duties, having as their counterparts specific claims that believers have against the deity. In fact, legal phenomena play a primeval role in religion because it is legal phenomena that endow deities (but not other supernatural beings like ghosts) with rights and duties through which they exert authority over human beings. Thus, it would be difficult to speak of religion in general without religious law. Furthermore, a consequence of Petrażycki’s conception is that religious law operates over an enormous space of action: Accordingly, the sphere of action and bindingness of religious law—​the law concerning gods—​embraces enormous world spaces—​up to infinity; the

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earthly surface on which people live is only a microscopical part of its space of action. 1959–​60[1909–​10], vol. 1, § 5: 173; 2011[1909–​10]: 85 As Petrażycki noted, literally everything can be subject to divine law depending on the human imagination. Therefore the status of deity can be attributed to immaterial entities, to animate natural beings (animals, plants, or human beings with certain special features), or to inanimate objects (1959–​60[1909–​10], vol. 1, § 5: 174–​5; n.d.[1904]: 54). Petrażycki’s approach seems also to imply a reflexive relationship. On the one hand, legal emotions contribute to the constitution of deities, on the other hand, the emergence of a religion reinforces human legal motivation due to the development of what could be termed a duality in law: the result is that there are two systems of behavior required by law, coincident in content: on the one hand, the law as between human beings, establishing for people obligations with respect to others as right-​holders; and, on the other hand, religious law, establishing for those same persons the obligatoriness of that same behavior, along with the representations of deities as right-​holders as to that behavior. 1959–​60[1909–​10], § 5: vol. 1, 176, 2011[1909–​10]; 86, see also 1959–​60[1909–​10], vol. 2, § 32: 181 This dual system bolsters the motivation to fulfill one’s obligations. The relationship between religious law and interhuman law (meždučeloveskoe pravo) is quite complex because interhuman law provides sanctions for violations of religious law or, more precisely, for the violation of people’s obligations toward deities.This endows people with the right to punish others for violating the deities’ rights (1959–​60[1909–​10], § 5: vol. 1, 176–​7, 2011[1909–​10]; 87). As argued by Petrażycki, diverse legal relations between deities, people, and other beings represented as animate (stones, rivers, etc.)19 are possible, especially at earlier stages in the development of the legal and religious psyche. Thus, people can enter into contracts with gods, or gods with other gods (meždubožestvennoe pravo,“interdivine law”), and the gods’ acceptance of the contractual terms was usually witnessed by priests (1959–​60[1909–​10], § 5: vol. 1, 179–​80, 2011[1909–​10]; 87–​8). It should be emphasized that Petrażycki does not explain whether the emergence of deities stems from factors other than the tendency to provide further reinforcement for the impulsions to discharge legal and moral obligations already existing within the persons’ psyches.20 Petrażycki believes that the development of the legal-​religious psyche parallels the development of law in general. At earlier stages of psycho-​cultural development, religious law gives the gods the right to punish peoples’ misdeeds by blood revenge. Petrażycki holds that in those stages of development people construe

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tragic events that occur in their everyday lives, as punishments inflicted by a deity. Those events, like a sudden death or an illness, affect not only the violator of some religious law, but also their associates, like members of their family, clan, or tribe. Furthermore, people, too, are entitled to punish deities in certain ways. For example, in the failure of divine intervention, believers may inflict a symbolic “ ‘death penalty’ by stoning the sacred idol or otherwise destroying it” (1959–​ 60[1909–​10], § 5, vol. 1: 178; 2011[1909–​10]: 87). Petrażycki’s theory of religion, which emphasizes the constitution of deities on the part of legal phenomena, easily explains such practices. If certain norms are broken and certain duties are not fulfilled, a deity, which is experienced as obliged to guarantee those norms and duties, turns out to be useless—​or, worse, to be in dereliction of duty—​and thus deserves to cease to exist.21 Petrażycki held that in polytheism, gods were only slightly different from humans. They were positioned only somewhat higher than human beings and anthropomorphic (1959–​60[1909–​10]: § 5, vol. 1: 180; 2011[1909–​10]: 88). In general, he considered polytheism as a low-​order stage in the development of religion. He also asserted that the development of religious punitive law parallels the development of inter-​human criminal law. The development of human courts imposing human worldly punishments for human crimes parallels the development of divine courts and divine otherworldly punishments that are “deferred to the life beyond the grave” (1959–​60[1909–​10]: § 5, vol. 1: 180; 2011[1909–​ 10]: 88). Petrażycki argues that it is possible that in monotheism, which he considered more developed than polytheism, God is not regarded as bound by ethical norms because that notion is at odds with the idea of an almighty Creator. Thus, from a theological perspective, speaking of God’s duties toward humans seems to contradict the very notion of God. Petrażycki stresses that this also applies to the idea of God’s rights, like the right to take vengeance22 on humans.This is because not only the idea of God’s duties but also that of God’s rights presupposes the idea of “the existence, above God and human beings, of a superior authority granting rights to Him” (1959–​60[1909–​10]: § 5, vol. 1: 181). However, according to Petrażycki, this is not the case with all monotheistic religions. He argues that in Islam, God has private-​law rights—​like the right to own certain plots of land, and in Islamic states He is regarded as the supreme state authority, endowed with rights and obligations (ibid.). Petrażycki notes that the Bible frequently refers to covenants between God and humans or, more precisely, the people of Israel (ibid.: 182). The term “Old Testament” (Vethij Zavet) is incorrectly translated. Testament means treaty, or contract (ibid.: 182).23 Further, Petrażycki generalizes his comments about Islamic countries to all theocracies, which he conceptualizes as states where “the rights and obligations of the supreme holder of state authority are vested in various deities ruling through archpriests or other organs subordinated to them” (ibid.). This statement implies that in a theocratic state, God not only has rights but also has

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duties toward His subjects. These include ruling in a manner consistent with the interests of the community as perceived by them. Petrażycki maintains that his psychological approach to legal phenomena is helpful in studying religion. This is because religions are permeated with legal emotions and a psychological approach explains some of their aspects. He gives the example of Judaism: The analysis and research of the Jewish religion from the perspective of legal psychology, especially, of the ancient Jewish religion as it is depicted in the Bible, would explain and prove that this religion is based on the legal psyche [i.e., on legal-​psychical phenomena], which psyche permeates it absolutely everywhere. Therefore, if one is not familiar with the legal, or imperative-​ attributive, psyche, with its properties, with its forms of manifestation, etc., it is impossible to achieve scientific knowledge and explanation of the meaning of this religion and of its various elements and manifestations. ibid.: 182 According to Petrażycki, Christianity differs from other, early religions in that the Gospel replaced a legal ethic—​one that is imperative-​attributive—​with a moral ethic—​one that is purely imperative (n.d.[1904]: 59, 71). However, at later stages in the development of Christianity, especially during the Middle Ages, elements of legal ethics appeared there as well (1959–​60[1909–​10], § 5, vol. 1: 188–​9, 2011[1909–​10]: 88, 1959–​60[1909–​10], § 39, vol. 2: 317–​8). Petrażycki’s views on Christianity are consistent with his personal religious convictions. While not a religious person, Petrażycki did not oppose religion either, although he was convinced it would gradually disappear: “He highly appreciated the educational role of Catholicism and considered reformed Christian denominations a transitional stage towards the disappearance of religion” (Licki 1985: lii).24 Given that Petrażycki believed that the ideal of love would replace law and morality, he thought that Christianity had anticipated that ideal. Furthermore, he probably believed that in the next stages of social development, Christianity’s legal elements would finally disappear, with Protestantism being a step in that direction. However, according to him, at the then current stage of civilization, Christianity, including Catholicism, still had an important educational role to play. A parallel can be drawn between Marx and Engels’s ideas on religion and those of Petrażycki. All three saw religion as something transitory but explained the issue differently. Marxism considers religion a response to external conditions that frighten people. Engels wrote that religion is “the fantastic reflection in men’s minds of those external forces which control their daily life, a reflection in which the terrestrial forces assume the form of supernatural force” (n.d.[1877–​78]: 353). Engels had in mind all the social and natural forces that people fear.With the onset of socialism, the social forces would be eliminated, and natural forces would be

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overcome based on scientific and economic progress. Religion would no longer be necessary and die out (ibid.: 353–​5).25 In contrast, for Petrażycki, the twilight of religion was associated with the achievement of the social ideal of love. At a higher stage of civilization, the concept of a supernatural external lawgiver onto which humans project the quality of a right-​and/​or duty-​holder was to disappear. This is because the achievement of the ideal of love and its replacement of law and morality would make it unnecessary to believe in supernatural enforcers of socially beneficial standards of conduct. Moreover, it would lead to the disappearance of divine beings (which Petrażycki understood as possessing rights and/​or duties) because the human legal psyche—​ that makes it possible to experience some animate entity as a right-​and/​or duty-​ holder—​would no longer exist. According to Petrażycki, religion and law are overlapping categories. The legal component is as important for religion as the religious component is for law.26 As such, Petrażycki justified the concept of religious law,27 a concept well-​known to medieval lawyers who assigned an important role to that law. Likewise, the religious dimension is evident in Islamic law. However, as pointed out by Petrażycki, in European legal studies, operating under the mistaken idea that only legal phenomena produced or recognized by state officials (“official legal phenomena”) can be regarded as law, religion was excluded from legal phenomena. The result was that, since European states no longer regulate religious-​legal phenomena (in Petrażycki’s sense), those phenomena are excluded from legal studies (1959–​ 60[1909–​10], vol. 1, § 17: 357–​8).28

Conclusions The analysis of religion was a secondary, though important, theme in Petrażycki’s work. On the one hand, Petrażycki used religion to reject the legal-​positivist view that associated law with the state. On the other hand, he used his own conceptualization of law to demonstrate that the legal is an important part of religion. This latter observation is his original contribution to the study of religion in general. Petrażycki also underscored the existence of para-​religious elements in legal thinking, mentioning in this regard the “general will,” “reason,” and the “national spirit.” Thus, he demythologized law by noting that none of the legal-​theoretical traditions of his time was free of myths. For Petrażycki these myths were projections that resulted in higher-​order entities (deities) that strengthened the emotions concerning rights and duties. Petrażycki’s notion of religion is quite narrow given that it only encompasses psychological experiences associated with representations of higher-​order entities. Arguably, Durkheim’s conceptualization is broader because, by referring to “sacred things,” it includes religions other than those with the concepts of gods or God. However, in focusing only on the social dimension of religion, Durkheim excludes

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individual religious beliefs as well as mystical experiences. On the other hand, Petrażycki comes close to Marxism when he concludes that religion and the “religious and legal psyche” will disappear as societies progress. However, Petrażycki’s notion of human progress—​fundamental to his philosophy of history—​and his conclusion that religion was becoming extinct were premature. This is because a multifaceted evolution of the forms of religiousness has occurred over the last century, and the pervasive privatization of religion in Western societies seems not have resulted yet in its abolition.29

Notes 1 The project was financed from the sources of the National Science Centre (Narodowe Centrum Nauki) according to the decision No. DEC-​2013/​09/​BHS5/​04436. 2 According to Petrażycki, this theory showed that “jurisprudence [of his time] had devolved to defending the pocket interests of owners, creditors, etc., and to interpreting law so as to help them provide evidence and win lawsuits” (1925[1913], § 1: 11). On Petrażycki’s criticism of the jurisprudence of his time, see Opałek (1961: 133–​6). 3 In the Russian original of 1925[1913], Petrażycki uses the term “narodno-​hazjajstennyj” (“national-​economic”). Moreover, in his earlier Lehre von Einkommen (1893–​95) he speaks of Nationaloekonomie. However, the terms “gospodarstwo społeczne” (“social economy”) and “społeczno-​gospodarczy” (“social-​economic”) occur in the Polish translation of the former work, by Jerzy Finkelkraut (Licki), supervised by Petrażycki himself and published in 1925, as well as in other Polish editions of his works that appeared in the 1930s. I am convinced that these terms were carefully chosen by Petrażycki and his disciples because “gospodarstwo narodowe” and “narodowo-​gospodarczy” refer more to the economy of the state than to the economy of society. In my opinion, the English terms “social economy” or “economy of society” fit better the context of Petrażycki’s thought than the contemporary English term “national economy” that simply refers to the economy of an entire country or state. It is worth mentioning that the term “social economy” is also an old one. John Stuart Mill wrote that social economy deals with “every part of man’s nature, in so far as [it] influences the conduct or condition of man in society” (1844: 136). It must be emphasized that Petrażycki, just as Mill—​whom Petrażycki appreciated—​was speaking of the effects of the economic actions of individuals on the condition of the whole society, rather than on the state’s economy as measured by an increase in national income. 4 See Petrażycki (1936[1901]: 6–​7), 13 (footnote), and 1925[1913]: 63. For another, in my opinion incorrect, interpretation of the relations between economy and law in Petrażycki’s views, see Kaczmarczyk 2013. 5 To be precise, Petrażycki was a democrat and a reformist, and he was clearly at a considerable distance from socialism (in this regard see Introduction and Chapter 2, in this volume). After the 1905 revolution, he briefly sat in the Russian parliament, the Duma, as a member of the Constitutional Democratic Party, being in favor of granting political rights to women. At the same time, however, he believed that the decentralized, or market economic, systems would be eventually replaced by centralized, or socialist, ones. See Kowalski 1963 (14–​6, 144–​6); Petrażycki 1959–​60[1909–​10] (v. 2, § 49: 600–​4); Habrat 2006 (40–​61).

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6 Petrażycki, arguing against Rudolf Stammler, explained that he meant, not a utopia, but a rational, purposeful policy of law that would serve to “gradually eradicate selfish, malicious emotional dispositions and … the psychical possibility of corresponding behaviors” (1925[1913], § 3: 53 f.). On the dispute between Petrażycki and Stammler, see also Pikuła (2013: 69–75). 7 I am referring to the methodological individual of classical and neoclassical economics. 8 To be precise, a representation may refer to either a spatiotemporally individuated action or an entire class of actions. 9 The right-​holder may also be the experiencer herself. In this case she experiences a “sense of entitlement.” 10 See Petrażycki (1959–​60[1909–​10], §§ 2–​4); (2011[1909–​10], §§ 6–​8); (n.d.[1904]: 20–​ 9). See also Leszczyna (1974: 54–​8); Kowalski (1969: 46–​9); Kowalski (1963: 44–​72); Opałek (1961: 138–​41); Motyka (2007: 28–​34). On the interpretations and opinions concerning Petrażycki’s legal ontology, see Biernat (2001: 154–​71). 11 Furthermore, it should be mentioned that, in a different context, Petrażycki’s contemporary, Pierre Bovet, in his Le sentiment religieux et la psychologie de l’enfant (1928[1925]) develops a viewpoint that has been used by Edoardo Fittipaldi (2012, § 3.1) to explain Petrażycki’s idea of the mystic-​authoritativeness of ethical emotions. Bovet argued that the religious sentiment can be seen as filial sentiment, i.e., the sentiment of a child toward her parents, whom she perceives as possessing “all the divine perfections.”When growing up, the child loses her faith in the divine character of her parents but also transfers the sentiments she had toward them to a remote, supra-​natural object. I must add, however, that Petrażycki’s view is more sophisticated than Bovet’s. 12 According to Rudolf Otto (1920: 13–​35, 39–​51), who was one of the proponents of the phenomenology of religion, this experience involves two elements: mysterium tremendum—​the feeling of terror or dread (tremor) of sanctity and the consequent notion of the deity’s majesty (majestas)—​and mysterium fascinans—​awe for the loftiness and incredibility of the deity that evokes a sui generis yearning for that deity. 13 Durkheim clearly related to the Latin category of res sacrae, which was also a separate category existing in Roman law. 14 Durkheim believed he was incapable of presenting—​as did Max Müller—​a psychological theory of religion. The approach to religion to which I refer here belongs to the mature period of Durkheim’s work. On the development of Durkheim’s attitude toward religion, see Filloux (1975:107–​17). 15 Harry M. Johnson (1975: 59) believes that Durkheim grasped the role of religion in society more deeply than Petrażycki, but did not go into details. 16 It is worth mentioning that there is some resemblance between Petrażycki’s notion of “religious technique” and Hans Albert’s conception of religion as Heilstechnologie (technology of salvation). Cf. Albert (1994: 216) and (1999: 46). 17 See also ibid., vol. 2, § 40: 328 and § 45: 476–​7, where Petrażycki accuses the positivist school of failing to notice the legal element in those phenomena. In fact, Petrażycki considers religion to be a relatively conservative sphere of psychical life and thus holds that—​unlike fashion (moda)—​religions and religious cults are mostly based on ancient customs rather than on current ones (vol. 1, § 2: 42). On these two different kinds of custom, according to Petrażycki, see Fittipaldi and Timoshina (2016). 18 Incidentally, a radical negation of the religious position can be found in Petrażycki’s criticism of Kant’s views (including the latter’s approach to causation). According to Petrażycki, if Kant rejected the hitherto theology, by reintroducing such concepts as

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God or the immortality of the soul as regulative ideas, he also prepared the ground for a new “natural theology” that used many elements of Christianity but is also subjectivist (the subjectivism charge is in fact the main criticism Petrażycki leveled at Kant). Thus, Petrażycki seems to claim that the so-​called critical method can be reduced to the number of fictions used in thinking (1939; 25–​35, see also Kowalski 1963: 32). 19 On Petrażycki’s conceptualization of the subjects capable of entering into a legal relation, see the entry “legal subject” in the Glossary. 20 Petrażycki intended to present in his sociology an adequate theoretical explanation of the emergence of religion, language, law, art, technology, etc., which according to him have in common their emerging out psychical processes involving multiple individuals (cf. Ossowski 1935a: 38–​9). Based on Petrażycki’s tenet of the unity of science, he also stated that sociology should take into account not only the achievements of psychology but also those of biology (ibid.: 40). The foundation of Petrażycki’s sociology seems to have been a theory of adaptation and of social selection. However, Petrażycki’s sociology was never completed (see Chapter 5, in this volume). 21 As for the reason why a god can be killed by simply destroying an idol representing it, Jean Piaget offered an explanation which seems to be compatible with Petrażycki’s view. Piaget made use of Lévy-​Bruhl’s concept of participation and defined it as th[e]‌relation which primitive thought believes to exist between two beings or two phenomena which it regards either as partially identical or as having direct influence on one another, although there is no special contact nor intelligible causal connections between them Piaget 1973[1929]: 157 Therefore, if a sacred idol is recognized as being in a special relation with the deity itself, destroying the idol is tantamount to killing the deity it represents. 22 Deuteronomy 32:35 (“Vengeance is Mine”) can be explained by monotheism’s earlier stage of development. (Author’s example.) 23 Incidentally, it should be recalled that Petrażycki regarded the distinction between treaties and contracts as theoretically useless, and that the Russian term dogovor means both. 24 This conclusion may be compared to Hans Albert’s analysis of the development of Protestant theology in Germany. According to Albert (1985[1980]): Protestant theology, because it has to a certain degree taken the results of scientific investigation seriously—​especially the results of its own investigations, such as the rediscovery of eschatology [Albert is referring to the discovery that “[t]‌he … views of Jesus were tightly connected with … his belief in the imminent end of the world,” ibid. 137, emphasis added]—​has run into difficulties that have brought it to the brink of atheism. ibid.: 152 25 It is worth stressing that Engels warned against attempts to abolish religion that would disappear on its own. 26 According to Petrażycki, such notions as “general will” or “national spirit” are the products of the same kind of psyche that produces divine beings. Thus, the religious

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elements in law, broadly understood, are not confined to the rights and obligations bestowed upon supernatural creations. 27 Jerzy Lande, in his Polish translations of Petrażycki’s works, used the term prawo religijne (“religious law”). I followed him because in my opinion Petrażycki had in mind a wider category of phenomena than merely Canon Law (we must remember that Canon Law influences many regulations established by secular rulers). 28 It is worth mentioning that Petrażycki was not speaking about church-​state law, i.e., a branch of state law regulating the relations of the state with churches and religious organizations. 29 Some scholars, such as José Casanova (1994, 2008: 101–​19), question the universality of the view that religion is being privatized. In this connection, it is worth mentioning the views of Peter L. Berger (1967: 28ff.), according to whom religions are a “sacred canopy” serving to legitimize and give sense to human reality. Religion is thus an attempt to perceive the universe as meaningful from the human point of view. Also, for this reason, the phenomenon of religion can be regarded as universal.

References Albert, Hans, 1985[1980]. Traktat über kritische Vernunft. English translation of 4th edition Treatise on Critical Reason. Princeton, NJ: Princeton University Press. Albert, Hans, 1994. Kritik der reinen Hermeneutik: Der Antirealismus und das Problem des Verstehens. Tübingen: Mohr Siebeck. Albert, Hans, 1999. Between Social Science, Religion and Politics: Essays in Critical Rationalism. Amsterdam and Atlanta, GA: Rodopi. Berger, Peter L., 1967. The Sacred Canopy: Elements of Sociological Theory of Religion. Garden City, NY: Doubleday. Biernat, Anna, 2001. Poglądy filozoficzne Leona Petrażyckiego i ich interpretacje. Toruń: Wydawnictwo Adam Marszałek. Bovet, Pierre, 1928[1925]. Le sentiment religieux et la psychologie de l’enfant. English translation The Child’s Religion. London and Toronto: Dent & Sons. Casanova, José, 1994. Public Religions in the Modern World. Chicago, IL: University of Chicago Press. Casanova, José, 2008. Public Religions Revisited. In Hent de Vries (ed.), Religion: Beyond the Concept. New York, NY: Fordham University Press. Chicherin, Boris N., 1900. Filosofija prava. Moscow: Tipo-​litografija Tovariščestva I. N. Kuršnerev i Ko. Constant, Benjamin, 1999[1824–​31]. De la religion considérée dans sa source, ses formes et ses développements. Paris: “Thésaurus” Actes Sud. Durkheim, Émile, 1995[1912]. Les Formes élémentaires de la vie religieuse. English translation by Karen E. Fields, The Elementary Forms of Religious Life. New York, NY, London, Toronto: The Free Press. Dutkiewicz, Paweł, 1980. Elementy religijne w doktrynie etycznej Leona Petrażyckiego. Zeszyty Naukowe Uniwersytetu Jagiellońskiego. Studia Religiologica, 5: 141–​8. Engels, Friedrich, n.d.[1877–​78]. Herrn Eugen Dührings Umwälzung der Wissenschaft. English translation Herr Eugene Dühring’s Revolution in Science (Anti-​ Dühring). New York, NY: International Publishers (without year). Epstein, Zygmunt, 1955. Book Review. Law and Morality by Leon Petrażycki. Notre Dame Lawyer, 31: 125–​32.

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Filloux, Jean-​Claude, 1977. Individualisme, socialisme et changement social chez Émile Durkheim. Lille: Université de Lille III. Fittipaldi, Edoardo, 2012. Everyday Legal Ontology. A Linguistic and Psychological Investigation within the Framework of Leon Petrażycki’s Theory of Law. Milano: LED. Fittipaldi, Edoardo, and Elena V.Timoshina, 2016.Theory of Custom, Dogmatics of Custom, Policy of Custom: On the Threefold Approach of Polish-​Russian Legal Realism. Ratio Juris, 30, 1: 105–​22. Habrat, Anna, 2006. Ideał człowieka i społeczeństwa w teorii Leona Petrażyckiego. Rzeszów: Wydawnictwo Uniwersytetu Rzeszowskiego. Hegel, Georg W. F., 1840. Vorlesungen über die Philosophie der Religion, Theile I–​II. Berlin: Duncker und Humblot. Johnson, Harry M., 1975. Petrazycki’s Sociology in the Perspective of Structural-​Functional Theory. In Jan Gorecki [Górecki] (ed.), Sociology and Jurisprudence of Leon Petrażycki. Urbana: University of Illinois Press. Kaczmarczyk, Hubert, 2013. Prawo i gospodarka w poglądach Leona Petrażyckiego. In Damian Gil and Łukasz Pikuła (eds.), Prawo i nauka w poglądach Leona Petrażyckiego. Lublin: Wydawnictwo KUL. Kowalski, Jerzy, 1963. Psychologiczna teoria prawa i państwa Leona Petrażyckiego. Warsaw: Państwowe Wydawnictwo Naukowe. Kowalski, Jerzy, 1969. Psychospołeczne podstawy teorii norm prawnych. In Kazimierz Opałek (ed.), Z zagadnień teorii prawa i teorii nauki Leona Petrażyckiego. Studia opracowane dla upamiętnienia stulecia urodzin. Warsaw: Państwowe Wydawnictwo Naukowe. Leszczyna, Henryk, 1974. Petrażycki. Warsaw: Wiedza Powszechna. Licki, Jerzy (Finkelkraut Jerzy), 1985. Życie i twórczość Leona Petrażyckiego. In Leon Petrażycki (Andrzej Kojder ed.), O nauce, prawie i moralności. Pisma wybrane. Warsaw: Państwowe Wydawnictwo Naukowe. Mill, John S., 1844. Essays on Some Unsettled Questions of Political Economy. London: John W. Parker. Motyka, Krzysztof, 2007. Leon Petrażycki: Challenge to Legal Orthodoxy. Lublin:Towarzystwo Naukowe Katolickiego Uniwersytetu Lubelskiego Jana Pawła II. Opałek, Kazimierz, 1961. The Leon Petrażycki Theory of Law. Theoria, A Swedish Journal of Philosophy and Psychology, 27: 133–​6. Ossowski, Jerzy, 1935a. O przedmiocie socjologii. In Prace socjologiczne. Rocznik I.Warszawa: Koło Socjologiczne Studentów Uniwersytetu Warszawskiego im. Leona Petrażyckiego: 37–​40. Ossowski, Jerzy, 1935b. Ważniejsze formy przystosowania i doboru społecznego: prawo, moralność i religja. In Prace socjologiczne. Rocznik I. Warszawa: Koło Socjologiczne Studentów Uniwersytetu Warszawskiego im. Leona Petrażyckiego: 47–​58. Otto, Rudolf, 1920. Das Heilige. Über das Irrationale in der Idee des Göttlichen und sein Verhältnis zum Rationalen. 4th edition. Breslau: Trewendt and Granier. Petrażycki, Leon, n.d.[1904]. O motivah čelovečeskih postupkov v osobonnosti ob ėtičeskih motivah i ih raznovidnostijah. Polish translation O pobudkach postępowania i o istocie moralności i prawa. Warsaw: Nakładem Księgarni K. Wojnara i Sp. Petrażycki, Leon, 1893–​95. Die Lehre von Einkommen.Vom Standpunkt des gemeinen Civilrechts. Berlin: H.W. Müller. Petrażycki, Leon, 1897. Prava dobrosovestnogo vladel’ca na dohody s toček dogmy i politiki graždanskogo prava. 1st edition. St. Petersburg: Tipografija M. M. Stasjuleviča. Petrażycki, Leon, 1925[1913]. K voprosu o social’nom ideale i vozraždenie estestvennogo prava. Polish translation O ideale społecznym i odrodzeniu prawa naturalnego, with the appendix

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O gospodarstwie i prawie i o istocie i przesłankach ekonomji politycznej. Warsaw: Druk Synów St. Niemiry. Petrażycki, Leon, 1936[1901]. Pravo i sud. Polish translation Prawo a sąd.Warsay:Towarzystwo imienia Leona Petrażyckiego. Petrażycki, Leon, 1939. Szkice filozoficzne. 1. O tak zwanej metodzie krytycznej oraz o metafizyce i filozofii praktycznej Kanta. Edited by Jerzy Finkelkraut. Warszawa: Towarzystwo im. Leona Petrażyckiego. Petrażycki, Leon, 1959[1908]. Vvedenie v izučenie prava i nravstnennosti. Osnovy ėmocional’noj psyhologii. Polish translation of the 3rd edition Wstęp do nauki prawa i moralności. Podstawy psychologii emocjonalnej. Warsaw: Państwowe Wydawnictwo Naukowe. Petrażycki, Leon (Jerzy Lande ed.), 1959–​60[1909–​10]. Teorija prava i gosudarstva s svjazi c teoriej nravstvennosti. Polish translation of the 2nd edition Teoria prawa i państwa w związku z teorią moralności. Warsaw: Państwowe Wydawnictwo Naukowe. Petrażycki, Leon (Wiktor Leśniewski ed.), 1968[1896–​97]. Vvedenie v nauku politiki prava. Polish translation Wstęp do nauki polityki prawa. Warsaw: Państwowe Wydawnictwo Naukowe. Petrażycki, Leon, 2011[1907]. Vvedenie v izučenie prava i nravstvennosti. Osnovy ėmocional’noj psihologii. 2nd ed. Abridged English translation Introduction to the Study of Law and Morality. In Leon Petrażycki (Nicholas S.Timasheff ed.), Law and Morality: Leon Petrażycki, with a new introduction by A. Javier Treviño. Piscataway, NJ: Transaction Publishers. Petrażycki, Leon, 2011[1909–​ 10]. Teorija prava i gosudarstva v svjazi s teoriej nravstvennosti. 2nd ed. Abridged English translation Theory of Law and State in Connection with a Theory of Morality. In Leon Petrażycki (Nicholas S. Timasheff ed.), Law and Morality: Leon Petrażycki, with a new introduction by A. Javier Treviño. Piscataway, NJ: Transaction Publishers. Piaget, Jean, 1973[1929]. The Child’s Conception of the Word. Translated by Joan and Andrew Tomlinson. London: Paladin. Pikuła, Łukasz J., 2013. Ideał społeczny i odrodzenie prawa naturalnego w świetle polemiki między Rudolfem Stammlerem a Leonem Petrażyckim. In Damian Gil and Łukasz Pikuła (eds.), Prawo i nauka w poglądach Leona Petrażyckiego. Lublin: Wydawnictwo KUL.

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12 PETRAŻYCKI’S LEGACY TO THE SOCIOLOGY OF LANGUAGE IN THE CONTEXT OF SLAVIC STUDIES Dalibor Sokolović

Introduction Though Leon Petrażycki was primarily concerned with the theory and policy of law, he also made important contributions to general sociology, the sociology of religion (see Chapter 11, in this volume), and pure economics (Petrażycki 1911). The goal of this chapter is to assess whether Petrażycki’s legacy to the social sciences extends to linguistic research, especially to the field of the sociology of language. Here, I focus on his distinction between positive and intuitive normativity, on his types of norms and normative facts, as well as on the parallels between legal dogmatics and linguistic prescriptivism.1 In what follows I begin by briefly defining a few concepts, including sociology of language, language policy, linguistic prescriptivism, and linguistic dogmatism. Next, Petrażycki’s distinction between positive and intuitive normativity is applied to the theory of language standardization and to the role of linguists (sometimes called, grammarians) in language policy. Following that, I highlight the application of Petrażycki’s ideas to the sociology of language by drawing on the example of Slavic languages. Notably, with the help of Petrażycki’s concept of normative fact, I examine certain aspects of their standardization, or, in Petrażycki’s terminology, unification. Finally, I discuss other applications of Petrażycki’s ideas in this area by exploring the relations between language policy, linguistic prescriptivism, and linguistic dogmatism in the context of the standardization and planning of Slavic languages in the minority position.2

DOI: 10.4324/9781351036740-16

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Definitions of Concepts As the sociology of language, language policy, and linguistic prescriptivism concern social phenomena par excellence, they attract the interest of social scientists who take an interdisciplinary approach. However, in this chapter, I consider them from the perspective of linguistics, as developed within the context and tradition of Slavic studies. Sociolinguistics developed rapidly, both theoretically and methodologically, during the second half of the 20th century. The discipline provides insight into the complex relationship between language and society. Interdisciplinary in its character, methodology, and goals, it is located somewhere between linguistics and sociology. Traditionally, the term sociolinguistics was used in studies where the starting point was language. In contrast, researchers who focused on social relations preferred the term sociology of language. However, both terms have also been used interchangeably to describe identical research programs. For example, early in its development, Joshua A. Fishman identified sociolinguistics and its goal: Sociolinguistics is the study of the characteristics of language varieties,3 the characteristics of their function, and the characteristics of their speakers as these three constantly interact and change one another within a speech community. Fishman 1972: 4 The terms sociology of language and sociolinguistics are here used synonymously, with emphasis on the interaction between speakers and language varieties within a community. Today, the sociology of language is just one of several areas of interest in sociolinguistic research. Sociolinguists have depicted the sociology of language as the science dealing with such complex linguistic forms and processes as variety, standardization, standard languages, and so on. It is one of the four basic sociolinguistic methodological paradigms (Dittmar 1997; Nekvapil 2002).4 As for language policy, it is a product of applied linguistics. It focuses on the attitudes and actions of a community or its leaders toward that community’s official language. Language policy is defined as a set of rational and mostly institutionalized procedures by which a society affects the language forms of public communication and the formation of the awareness of the participants in communication concerning those forms. Škiljan 1988: 8 Language planning is important in this process. It is usually referred to as “language policy and planning” (Ricento 2006) and separated into status planning vs. corpus planning. According to Christina Bratt Paulston, corpus planning refers

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to technical linguistic decisions about language by linguists such as language standardization and spelling reforms, while status planning deals with policy formulations, usually political in nature, by government officials, like choice of official language or choice of medium of instruction. Bratt Paulston 1998: 8 Corpus planning is a task mainly of linguists, while status planning is of concern to other stakeholders, most often politicians. It should be borne in mind that language status planning occurs continuously in all societies, including those regarded as relatively stable in their social development, such as the United States, the Netherlands, and Canada.5 According to Ricento (2000: 197), three factors constitute the first stage, occurring in the early 1960s, in the development of language policy and planning (LPP): (1) the decolonization and formation of new states (the macro sociopolitical factor), (2) the structuralism and postmodernism that dominated the social sciences (the epistemological factor), and (3) the belief that language problems can be solved by means of planning, especially in the public sector (the strategic factor). In this first stage, LPP used language as a source of values to unify groups (national, religious, political, etc.) or to bolster democratization (Ricento 2000: 199–​200). The second stage in the development of LPP, the period of “critical” sociolinguistics, occurred in the 1970s and 1980s. During this phase, researchers focused on the political, economic, and social aspects of language contacts, as well as on the conflicts they inevitably involve, thereby exploring the relations between speech communities in particular contexts. The third stage began in the mid-​1980s and continues to the present. Some issues of concern include language loss, linguistic ideologies, and language ecology. During this phase, new paradigms consider the relations between language and community conceptualized as one “living system” (Puppel 2007). Particular attention is paid to the use of new technologies (such as digital language sources and electronic corpora) that can help to better understand the function, structure, and acquisition of a society’s language varieties (Dolník 2010: 29). Two other terms whose meaning should be clarified are linguistic prescriptivism and linguistic dogmatism. Linguistic prescriptivism involves studying the linguistic phenomena (pronunciation, grammar, semantics, syntax) of a given language, and giving preference and/​or normative primacy to one of its varieties (dialects, language registers, styles). This means that other varieties are considered incorrect or improper (so-​called solecisms or grammatical blunders), because they are deemed to be communicatively ineffective and/​or to lack aesthetic value. Thus, linguistic prescriptivism, in a Petrażyckian sense, should be called normative linguistic science or linguistic dogmatics (see Fittipaldi 2016a, § 18.12). The term linguistic dogmatism is used here more narrowly and, notably, to refer to the users’/​planners’ consideration of certain characteristics of a language variety as a dogma; a consideration

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that implies conservatism, loyalty, and consistency in cultivating a particular language standard. The overall goal of prescriptive actions is to establish and maintain a language standard, the so-​called correct forms, and to advise the community on the “appropriate” ways of communication. These actions may be conservative—​i.e., resistant to language change—​as in the case of language dogmatism, or innovative, which may result in standard forms that are new or strange to the community (neologisms). Prescriptivism is usually contrasted with “descriptivism” (descriptive linguistics), which observes and records how language is actually used in all its forms. It is objective in that it does not make evaluative judgments. Despite this difference, prescriptivism and descriptivism cooperate with each other, and the basis of both approaches is the linguistic analysis of texts or of data gathered in field research.

Positive vs. Intuitive Normativity and Petrażycki’s Normative Facts My analysis of similarities between Petrażycki’s ideas and the concepts of the sociology of language begins with a discussion of standard languages. At the beginning of modern linguistic research, at the time of the Neogrammarians during the late 19th century, the standardization of languages was influenced by their study of language history. This resulted in a purist approach to linguistic standardization whose goal was to adopt as a model a more-​or-​less “original” language, or a particular ancient language. It was said that certain historical periods and writers represented the classic era of a given language, and that their language should serve as the standard for contemporary writers. This created a tension between current linguistic usage and proclaimed norms. The contrast was sometimes expressed metaphorically, as in the vernacular language being like a forest that grows naturally, and the standard language being akin to the artificial cultivation of plants by gardeners (Dolník 2010: 10). Structuralism, during the first half of the 20th century, rejected this romantic, and often nationalistic search for linguistic perfection. Of central importance to structuralism was language as an instrument that evolved to perform specific functions, and that should be improved in terms of its functionality. The term elastic stability was introduced into the study of standard languages to refer to a form of normative dynamics (Dolník 2010: 12). The dynamics of language change involves implementation of the developmental potential of a language according to its overall character (cf. Dolník 2010: 51), whereas elastic stability (i.e., the balance between prescribed norm and natural development) is best achieved by taking into account the language used in the works of the “classical” authors during the more-or-less arbitrarily determined past 50 years of literary production. Up until the end of the 20th century, the focus was on the naturalness as opposed to the artificialness of standard languages. The Slovak linguist Juraj Dolník (2010: 42) commented on this debate invoking F.A. von Hayek’s

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(1982[1973–​79]: 35 ff.) two types of order: cosmos and taxis. A cosmos is a spontaneous order, that is, a self-​organizing or endogenous system; a taxis, in contrast, is constructed through people’s conscious actions and operates on the basis of their regulation (Dolník 2010: 42). We can now draw a parallel with Petrażycki’s classification of positive and intuitive law (Petrażycki 2011[1909–​10], § 30, 1999[1909–​10]: § 35).6 He defines positive law as the law based on “normative facts,” such as statutes, customs, judicial or nonjudicial precedents, and prophets’ sayings. As for intuitive law, it is characterized by the absence of any reference to such sources. In Petrażycki’s opinion, positive law is more detached from people’s spiritual, economic, and social life, while intuitive law is influenced by social and cultural changes. He also believed that because positive law is built on normative facts, it cannot spontaneously adapt to social changes. Intuitive law, in contrast, is highly flexible and represents a basis for the correction of positive law. In this sense, Petrażycki seems to have anticipated the scholars who rejected the then dominant conservatism and historicism of the social sciences, including linguistics. Language standardization can be regarded as a phenomenon akin to Petrażycki’s unifying tendencies in law that result from social interactions and tradition. When it comes to language standardization, some linguists (Rajić 1983: 181; Škiljan 1988: 10, 57) distinguish between an implicit standardization, emerging out of spontaneous development, and an explicit standardization, shaped by language planners’ deliberate actions. A standard language is therefore a “spontaneously formed system with elements that are subject to conscious regulation” (Dolník 2010: 43). As such, Dolník divides standard languages into four types (ibid.: 21): 1. universalistic, those widely open (liberal) to common usage; 2. intentional, those oriented to certain language forms regarded as prestigious by speakers; 3. integrational, those oriented to narrower literary usage, and intended to guide spoken language in light of that usage; 4. resistant, those oriented to maintain the status quo in a given language (conservative type). Dolník (2010: 52) also raises several questions from the perspective of the theory of standard language and its cultivation. Among other things, he asks what changes affect a particular standard language. Here, the answer is provided by descriptive linguistics, which registers and classifies dynamic phenomena. In addition, he asks what changes are acceptable in the cultivation of a given standard language. This, I believe, is a question for prescriptive linguistics. In different languages, the role of standardizing factor has been played by different normative facts, depending on the society under consideration. I will consider four cases. To begin with, in France, Parisian French served as the model for standardization because Paris was that country’s center of political and economic

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life. In Italy, there was the language variety of Florence that was endowed with the authority of the literary works of great Florentine writers like Dante, and later from all over Italy (e.g., Manzoni).The Hungarian standard is based on the dialects originally spoken in the northeastern part of the country, on the first Hungarian translation of the Bible by Gáspár Karoli, and on the prescriptions of the language reformer, Ferenc Kazinczy. Finally, German exemplifies polycentric standardization, having three areas of standard development more-​or-​less corresponding to the areas of contemporary Germany, Switzerland, and Austria. In this connection, linguists can benefit from Petrażycki’s distinction between norms and normative facts. According to him, a normative fact is the perception or representation of something external to individuals, whereas a norm is something that individuals experience and project. In statutory positive law various commands, prohibitions, and other linguistic expressions … do in fact exist, but these are not norms: they are only normative facts, by which and to which the corresponding legal opinions of people and the corresponding projections (including norms) are, respectively, determined and referred. 1999[1909–​10], § 23: 150, 2011[1909–​10]: 155 Petrażycki identifies norm-​annihilating normative facts and norm-​establishing normative facts.7 Because certain kinds of normative facts can affect the linguistic habits of a community, they are relevant to the sociology of language. As for norms, Petrażycki accepts the traditional juristic distinction between norms requiring the performance of certain actions (obligations) and norms requiring the abstention therefrom (prohibitions) (Petrażycki, 1999[1909–​10]: 148, 2011[1909–​10]: 155). This traditional distinction between obligations and prohibitions can generally be applied to prescriptive linguistics. For example, the Yugoslav theorist of language policy, Ljubiša Rajić, identified three types of norms (Rajić 1983: 181): prohibitive, affirmative, and affirmative-​prohibitive. The prescriptive approach treats language rules as explicit norms that not only direct users to speak the language properly but also censure and correct those who do not. In addition to explicit linguistic norms, linguists recognize implicit norms (Škiljan 1980: 148). This approach was regarded with suspicion starting from the first half of the 20th century. For example, in 1936, the Czechoslovak linguist Bohuslav Havránek—​at the IV Congress of Linguists in Copenhagen—​ asked “whether the linguistic norm, that is, the process of regulating and nurturing language culture should be at all a topic … for linguistics, and whether it is at all scientific” (quoted in Sesar 1996: 78). The Prague linguistic school, of which Havránek was a prominent member, greatly contributed to the development of the concept of linguistic norm, as distinguished from the linguistic description. The linguistic norm uses the value-​free data provided by linguistic description to regulate certain usages. Today, the linguistic norm is treated as variable and

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dynamic, not only in sociolinguistics but also in the field of grammatical competence (Neustupný 2002: 436). In postmodern societies, changing the linguistic norms is no longer considered as significant as in the past. Now the focus is on how language affects social relations, rather than on the propriety of speech. Thus, prescriptive grammarians now believe that norms decline, that they are decentralized, etc. (Uhlířová 2002: 445). This belief is also found in the theoretical writings on language standardization. If previously emphasis was placed on strict standardization, now rules and regulations aim at finding a balance between the standard and its users.What users think about norms, how they evaluate them, whether they comply with them, and, if they do, whether their compliance depends on the kind of social interactions in which they are engaged, have become important issues for linguists, since they characterize how norms are complied with. In Dolník’s opinion (2010: 104), the nature of individuals’ attitudes toward standardized linguistic norms depends on three variables: freedom, (language) naturalness, and autonomy. Petrażycki’s thinking on kindred issues helps us understand that norms are attitudes within the individuals’ minds, and that the means that affect standardization are normative facts (books on grammar, choosing a certain variety or specific authors as a standard, etc.) whose goal is to affect those attitudes. Furthermore, language normativists must also consider the dialectical relationship between linguistic norms and other social norms and phenomena. On the one hand, linguistic norms may influence social norms and phenomena; consider, for example, how the T-​V distinction in languages like French (i.e., tu vs. vous) may affect the distance, domination, and antagonism between individuals. On the other hand, social norms and phenomena may affect the standardized norms; for example, the linguistic variety in a country’s region may replace or affect another variety previously regarded as the standard, due to the economic growth of the former region as against the stagnation of the latter.Today normative grammarians must increasingly consider these facts. Dolník concludes correctly that: At the center of attention is … Wittgenstein’s idea that we will understand a person’s … actions only after we understand the significance ascribed to them. He shifted the perspective from the subject-​object relation to the subject-​subject one, affected through activities involving the use of signs. Dolník 2010: 281 Jerzy Lande, “Petrażycki’s most faithful pupil” (Fittipaldi 2016b: 505), posed the following question: How are binding8 language norms established (Lande 1947: 34)?9 Lande notes that prescriptive grammarians have a great responsibility, since their judgments (orzeczenia—​a legal term) automatically become normative facts to many people (1947: 36). In other words, prescriptive grammarians become language planners in the corpus planning process. Further, according to Lande, prescriptive grammarians should not only act normatively but also

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teleologically (1947: 37). They should consider the effects of their acts on linguistic phenomena and on social phenomena in general. Hence, Lande holds that prescriptive grammarians (or language planners) should not only be dogmaticians (in the sense usually attributed to this term in theology and the legal tradition, as well as by Petrażycki) but also politicians of language (1947: 36). Discussions on how linguists should act in the role of linguistic politicians are common among today’s Slavists (Kryżan-​Stanojević 2008). Prescriptivists should carefully examine what is and is not useful for a given language. However, even today the situation is far from ideal, because often in this process: it does not pertain to an analysis that uses socio-​linguistic, or scientific, approaches in the development of a language, but to the desires and attitudes of individuals who often, due to their emotional approach to the matter, are unable to address the subject from a scientific perspective and offer a credible analysis. Kryżan-​Stanojević 2008: 685 In this analysis, linguists could be aided by the statistical methods of corpus linguistics, which studies corpora, or samples, of real linguistic phenomena.10

Normative Facts in the Standardization of Slavic Languages We now consider how Petrażycki’s concepts of normative policy and normative dogmatics can be used to analyze linguistic standardization. Lande mentioned five types of normative facts to which prescriptivists refer (Lande 1947: 34): 1. 2. 3. 4. 5.

custom, models (e.g., certain prominent writers), the opinions of grammarians, statutes, and judgments in a strict sense—​this is the case with those organizations that settle disputes concerning specific linguistic usages.

A brief analysis of some of these normative facts with examples from Western-​ European languages is offered by Fittipaldi (2016b: 525). Here, I apply his framework to Slavic languages11 and identify those normative facts that have been employed in the past.This historical overview will prove useful for understanding the present linguistic situation, as well as for devising appropriate actions furthering language planning. In particular, I will focus on the region that constituted the former Yugoslavia, and on the development of the standard Serbo-​Croatian language. Customs have played a major role in the standardization of all Slavic languages. More precisely, we should speak of “qualified” customs in that, commonly, they are specific variants of a vernacular language. They are established on either a

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homogeneous or a heterogeneous basis. A homogeneous basis involves using the main dialect as is the case with Russian (Moscow’s interdialect, the koiné language, emerged out of the contact between the mutually intelligible varieties spoken in the Moscow region), Ukrainian (the Poltava-Kyiv dialect), Belorussian (Minsk), Sorbian (the Bautzen dialect for Upper Sorbian and the Cottbus dialect for Lower Sorbian12), Slovak (the Central Slovak dialects), Czech (Central Czech interdialect), Croatian (certain dialects of southern Croatia and Herzegovina), and Serbian (the dialects of Western Serbia). A heterogeneous basis can be found in Polish (a combination of Greater and Lesser Polish dialects), Bulgarian (northeastern dialects with elements of western ones), Macedonian (Central Macedonian dialects with elements of other dialects), and Slovenian (based on a kind of consensus among all Slovenian dialects). As for the models of normative facts relied on by prescriptivists, these include authors whose literary work gained normative force in numerous standard Slavic languages. Aleksander Pushkin played a decisive role in the formation of the Russian standard in the 19th century (Sesar 1996: 99), with Ukrainian it was Taras Shevchenko—​with his poetry inspired by folk literature—​and Ivan Franko. In Polish, this role was played by such authors as Kochanowski, Mickiewicz, and Sienkiewicz. As pointed out by Dubravka Sesar (1996: 90) “at all stages of … its development, Polish literature went ahead of Polish philology, determining and directing in the best way the process of language standardization.” As for the Czech standard, it was Komenský, Kollár, Erben, and Němcová, and in the cases of Bulgarian and Slovenian the literary models were Botev and Vazov, and Prešeren, Čop, and Levstik, respectively. In this regard, the publications of the Illyrian movement (a group of young Croatian intellectuals led by Ljudevit Gaj) in the Austrian empire should also be mentioned. That movement had a major role in reaching an agreement between Serbs and Croats, in Vienna in 1850, for creating a standard for one Serbo-​Croatian language. The opinions of grammarians as a third type of normative fact can be found in later stages in the standardization of the Russian language (Lomonosov,Vostokov, Potebnja, Fortunatov, Shakhmatov, Vinogradov), with their books on grammar, dictionaries, and orthography manuals. In the case of Slovakian, this role was played by Bernolák, Štúr, Hatala, and Czambel; in Sorbian by Hórnik and Muka; in Macedonian by Koneski; and in Serbian by Karadžić, Daničić, and Belić. Some of these philologists were also the first codifiers of their respective standard languages. Although, as we have seen, the Prague structuralists of the 20th century attacked the historicist dogmatism in standardization, the Czech language also had its codifiers (Dobrovský, Jungmann, and Šafárik). In all Slavic languages, the relation between conservative and progressive tendencies was fiercely discussed. During the first half of the 20th century, Polish linguists tried to resolve disputes between purists and anti-​purists in the journals Poradnik Językowy and Język Polski. In Slovenia, a similar situation took place in the mid-​19th century with the

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conflict between those who supported Slavic unity and Slavization and those who supported the traditional Slovenian role in the Austro-​Hungarian empire. In the case of such journals as Slovo a slovesnost, Język Polski, and Novice we deal with normative facts that from a Petrażyckian perspective can be characterized as statutes. To some extent, those journals can be regarded as the official gazettes of the Prague Linguistic Circle, the Academy of Learning, the Society of Friends of the Polish Language, and the Carniolan Agricultural Society.13 The standardization of Belarusian offers an interesting example of a normative fact that is a combination of a model and a statute. In Belarus, the journal Nasha Niva was founded in 1906. In this journal, Janka Kupala and Jakub Kolas, neither of whom was a trained linguist, were the first to write both in and on Belarusian. As for normative facts that can be regarded as judgments in a strict sense, many Slavic countries had dispute-​settling institutions concerning linguistic usage. For example, there was the “language helpdesk” within the Czech Language Institute of the Czech Academy of Sciences, and the Board for the Standardization of the Serbian Language founded by the Serbian Academy of Sciences and Arts.14 Finally, we can introduce the sixth type of normative fact relevant to linguistic phenomena, which can be compared to Petrażycki’s statements and models of conduct of religious-​ethical authorities (cf. Fittipaldi 2016a: 493), namely, sacred texts or their translations. Examples of this normative fact in the area of Slavic languages are the translations of the Bible by Jakubica into Lower Sorbian during the 16th century and by Frenzel into Upper Sorbian during the 18th century. I conclude this section with an example of a failed standardization, one that results from the absence of strongly recognized unifying normative facts and of an explicit language policy. This example is found in the history of the Serbo-​ Croatian language. Until its fragmentation in the late 20th century, Serbo-​ Croatian presented a unique case of a polycentric standardization within a single state, Yugoslavia. It had two standard variants, the eastern and the western, with centers, respectively, in Belgrade and Zagreb.15 In Yugoslavia, equality was guaranteed to all official federal languages (Serbo-​Croatian, Slovenian, and Macedonian, as well as Hungarian and Albanian at a provincial level), but in public communication, there were limits (Škiljan 1988: 108) and Serbo-​Croatian was a common language (Radovanović 1986: 202). Škiljan contends that in Yugoslavia there was no explicit language policy (1988: 124) and that status planning was its weakest aspect (1988: 127), given that it was often unknown who was responsible for specific language policy issues. This resulted in the absence of clearly binding normative facts that could foster unification. For example, at school, Croatian and Serbian students studied slightly different grammars, and the only normative fact enacted with the goal of unification—​the Novi Sad Agreement signed in 1954 by Serbian, Croatian, and Bosnian writers and linguists (and that from a Petrażyckian perspective could be regarded as something between a statute and a contract/​ treaty)—​was never really implemented. The incompleteness of the standardization, or unification, of Serbo-​Croatian resulted in its eventual fragmentation into

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four standard languages: Serbian, Croatian, Bosnian, and Montenegrin. This was accompanied by political influences on the process of standardization and by the confusion of roles between status and corpus language planners (politicians and grammarians) being in agreement with the reactivated romantic principle of one nation, one state, and one language. For example, this confusion led to prohibiting ijekavica spelling and favoring ekavica spelling and pronunciation (e.g., reka in lieu of rijeka, “river”) by the Government of Republika Srpska in 1996. This situation lasted only until 1998, when ijekavica was allowed again.

Language Policy vs. Language Dogmatism in the Standardization of Slavic Minority Languages Another application of Petrażycki’s concepts of relevance to the sociology of language concerns the language policy of Slavic languages in a minority position. Among Petrażycki’s many accomplishments was his effort to create a theory and policy of law independent of the legal dogmatics which dominated the Continental legal studies of his time. Petrażycki distinguished between moral and legal norms. Moral norms are unilaterally binding without correlative claims; they are purely imperative. Legal norms involve a correlative claim and are called imperative-​attributive (Petrażycki 1999[1909–​10], § 3: 31; 2011[1909–​ 10]: 47). It is the attributive character of norms (i.e., their involving correlative claims) that makes it possible to discriminate between legal norms and moral ones. This differentiation ultimately rests on the kinds of emotions involved: “the fundamental distinction between morality and law lies in the difference of the corresponding impulsions, which have a purely imperative character in morality and an imperative-​attributive character in law” (Petrażycki 1999[1909–​10], § 22: 147; 2011[1909–​10]: 153). From a Petrażyckian perspective, the fact that certain linguistic norms may be experienced not only as purely aesthetic but also as ethical norms,16 as well as the fact that one can experience as binding incompatible linguistic norms, may lead users of a given language to a state of inner conflict. Those conflicts will have different qualities depending on whether the incompatible norms are of the same type or not (e.g., aesthetic norm vs. ethic norm). If we consider this latter case, a speaker might experience an inner conflict between the way she “likes” to use her language (aesthetic norm) based, say, on how her friends and close relatives speak, and a certain incompatible linguistic moral norm. If she chooses to follow her own aesthetic norm, she might end up in interactions where her way of speaking causes unease and embarrassment, to herself and to other participants in the interaction. Research on the standardization of minority languages has mostly focused on problems related to language revitalization like, for example, the social settings of language use (e.g., family, work, school), in order to enhance its use in other settings. It has also examined the development of language standards through grammar books, textbooks, and dictionaries (Ricento 2000: 208). More recently,

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the list of topics has extended to issues of power and identity, and notably to the question of whether the standardization of minority languages involves the transfer of the national ideology to the speakers of the minority language, who would thus be led to develop a national ideology of their own. A further issue being discussed concerns the authoritativeness and authenticity in language planning, in that, often, past usages (or linguistic customs, in Petrażycki’s sense) are experienced as more authoritative than contemporary ones (Lane 2014).17 Pia Lane suggests that the development of a standard language for language minorities is not a neutral process, it has direct consequences on their perception of the new standard (2014: 2). The problems are (1) whether the users will adopt the new standard, (2) how they will adopt it, if at all, and (3) whether they will identify with it after it has been standardized. As can be expected, the standardization of a minority language involves the risk that users will not identify with it: [T]‌hus, a standardization, which was supposed to empower the speakers of the minority language may create a new form of stigma for those who feel that they cannot live up to the new codified standard. ibid. In addition to the sense of inferiority, the speakers of the minority language may also experience as an obstruction the imposed standardized form of their own minority language. Thus, an inner conflict may result between the speaker’s intuitive aesthetic norm—​the way she feels like speaking her own minority language—​ and the positive moral norm, which dictates how her own language should now be spoken. Consequently, she may experience unpleasant moral repulsions, like shame, for not speaking in the “proper” way, or may be the object of mockery or other forms of normative repulsions on the part of others. One example is found in Sweden’s Övdalian language community, which fought for recognition of its endangered language. In order for the language to be standardized and its status and position improved, grammar, vocabulary, and a standard alphabet were created, all phenomena that from a Petrażyckian perspective can be conceptualized as forms of statutory positivization. However, certain aspects of that standardization process are problematic for the Övdalians. The language is now highly valued in the Övdalian community, and gained official recognition, but it is seldom used. This situation is similar to Irish in Ireland, which was an important driver for emancipation after independence, despite English being used much more frequently. As for Slavic languages, I now present the examples of Sorbian in Germany and of Slovak in Serbia, notably, in the autonomous province of Vojvodina. The two language communities are differentially situated. First, the Sorbs do not have a country of their own, whereas the Vojvodinian Slovaks do. The latter is paramount in regard to language maintenance and intergenerational transmission. Furthermore, Sorbian is in contact/​conflict with German, a non-​Slavic language,

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while Slovak in Vojvodina is in contact/​conflict with Serbian, a Slavic language. Slovak is genealogically and typologically similar to Serbian. As such, these two languages differ in their degree of endangerment. Not surprisingly, the more vital of the two is Vojvodinian Slovak. What makes these languages similar is that all their users are diglossic (ibid.: 201). This means that they use two different varieties in their community, a vernacular variety (labeled “L,” or “low” variety), and a codified variety (labeled “H,” or “high”), used in literature and education, but not in ordinary communication. Vojvodinian Slovak corresponds to the standard used in Slovakia, from which Vojvodinian Slovaks have been territorially separated for over 250 years (contemporary Serbia does not even share a border with Slovakia). In contrast, the Sorbian languages are standardized in an expressly purist way, in accordance with Slavic models (i.e., the Czech and Polish ones), as a way to resist assimilation and Germanization. In this situation, Sorbs are beginning to experience the H-​variety as inauthentic, and when speaking it they feel the burden of a moral—​or even legal (in a Petrażyckian sense)—​obligation. Small wonder that when communicating, they find it is easier to use the dominant language (German) for various reasons: “because our language cannot express it [an idea],” “because everybody understands the state language anyway,” and so on.To put it in Petrażyckian terms, rather than act normatively, they act teleologically, that is, with the intent of making themselves understood with the least effort.18 Today, there is increasingly more discussion of this issue among linguists. Projects aimed at standardizing minority languages are undertaken with one of their respective varieties resulting in being considered the standard.19 Issues raised in this regard by linguists are the following: 1. how standards are created, and related issues concerning how standards are raised, circulated, rejected, or accepted, by whom, and under what conditions; 2. who gains from the establishment of the minority language; 3. what new social categories are created in the process, and who is excluded from them (on all these issues, see Costa [2016]). These issues are central to the analysis of standardization in many parts of the world. Further, in many linguistic regions, researchers have a unique opportunity to formulate hypotheses and proposals and to understand the relationship between dominant and nondominant languages. These hypotheses and proposals may shed light on their relationships, but also be helpful with other endangered languages. In the case of endangered languages, prescriptivists must be careful with the choice of normative facts they propose for achieving standardization, or unification, to use Petrażycki’s term. The feelings of insecurity, low self-​confidence, exclusion, and discrimination, that users of an endangered language may experience, can have a negative impact on the use of that language, and thus on its maintenance and revitalization (processes that are currently intensive in Sorbian).

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While standard varieties are involved in defining, strengthening, and emancipating endangered languages, they can also exclude some users. Study of such exclusion is important to the investigation of the standardization of minority languages.While standardization can strengthen a given language, it may also cause an entire group or individuals to feel excluded or estranged from social spheres where they previously felt comfortable. Thus, focusing solely on the normative facts that forcibly produce standardization or unification may become an obstacle to the preservation of a given language.

Conclusion As Fittipaldi argues,“Petrażycki’s distinction between the theoretical legal sciences, legal dogmatics, and legal policy is perfectly mirrored in Lande’s treatment of language” (Fittipaldi 2016b: 524). At the center of Lande’s comparison of legal dogmatics with linguistic prescriptivism is standardization/​unification. Petrażycki saw legal phenomena as conflict-​producing, and the tendency toward standardization/​ unification as a result of that conflict-​producing nature. Thus, according to him, this tendency toward standardization/​unification is much weaker in the nonlegal, normative domains of morality and aesthetic (the latter being the domain to which linguistic prescription usually belongs, according to this approach).20 It is easier to achieve a compromise, or unification in the linguistic domain, say, between grammarians and users, than in the legal domain. Further, owing to computers that analyze huge amounts of language corpora, “democratic” methods for achieving standardization/​unification are now used more frequently. In this sense, the job of prescriptive linguists is easier than that of lawyers. It seems rather straightforward to determine how the majority of people speak than to determine what the majority of people experience as a right. However, linguistic dogmatism was, and to some extent still is, more influential than “democracy,”21 and it seems to be characterized by strong moral and even legal emotions. Historicity and linguistic conservatism in regard to language prescription, instead, may sometimes simply pursue milder pragmatic aims, as when, for example, there is a search for a common standard without undue moral or legal radicalism. This is not to deny that historicity and linguistic conservatism, too, may sometimes be detrimental as in the case of purist language policies being imposed on minority languages. Petrażycki believed that the ultimate end of legal policy should be love, or benevolence, toward everybody (including animals). Furthermore, according to Petrażycki “law and morality are made up of ethical emotions and therefore exist exclusively within each Subject’s psychical reality. It follows that law and morality are purely individual phenomena” (Fittipaldi 2016a: 448). A consequence of Petrażycki’s ethical solipsism is that legally or morally structured social relations are denied extrapsychical existence. Science should, in his opinion, study how humans participate in the processes of social life and contribute to their structuration through their individual ethical emotions and convictions. Thus, all social

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phenomena consist, not of objective relationships, but of experiences within the minds of the participants. Finally, Petrażycki repeatedly stressed the need for the preliminary investigation of people’s attitudes and motivations in order to implement successful legal policies (2010[1896–​97], 2010[1913]). Similarly, in contemporary sociology of language, and especially in the field of LPP, the focus is on the individual. Here, the goal is to investigate the attitudes of the speakers toward linguistic prescriptions, rather than to blindly impose those attitudes in accordance with the tastes or preferences of this or that linguist (the bottom-​up approach).22 As we have seen with the language communities of Sorbs in Germany and Slovaks in Vojvodina, the attitudes of users are usually ignored in the pursuit of language standardization/​unification. Against this trend, the linguist, Miroslav Dudok, argues that imposing language standardization/​unification with a prescriptive approach—​that is, in Petrażycki’s terms, by means of normative facts and the resulting positive normativity—​may, in the case of the Vojvodinian Slovak, turn out to be counterproductive. Dudok advocates a preventive approach, according to which we should not focus exclusively on evaluation (“That usage is wrong”) or correction (“You should speak that other way”), but also on what motivates speakers to use either approach, depending on the register and style required by the social situation (Dudok 2006: 14). If we characterize the spontaneous linguistic attitudes of Vojvodinian Slovaks in terms of their intuitive linguistic convictions, this two-​tier system has a nearly perfect counterpart in Petrażycki’s relationship between intuitive legal convictions and positive legal convictions regulating different aspects of social life: Many domains and elements of our relations with neighbors—​especially those near us in family or domestic life—​in the field of love, friendship, acquaintanceship, and comradeship, generally, are foreign to the positive-​ legal regulation, and, to the extent they are determined by legal [emotions], … they are determined exclusively by intuitive law … [On the other hand, i]t is in certain fields, chiefly those of official relationships involving administrative agencies, that positive law plays an exclusive or decisive part. 1999[1909–​10], § 36: 222; 2011[1909–​10]: 229 In other words, it would be absurd, even counterproductive (as far as the pursuit of the ideal of love is concerned), to force old friends to regulate their relationships with each other strictly in terms of state positive law rather than in terms prescribed by their shared intuitive legal convictions (provided that their relationships are not “regulated” by pure benevolence). The same applies to the case of linguistic standardization/​unification. Although sociolinguists agree that the sociopolitical context of LPP is essential and advocate bottom-​up approaches, there is a need for a more sophisticated analysis of how the participants in social processes experience themselves as users (or nonusers) of language standards. Scholars such as Ricento (2000: 206) have

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called for a new paradigm that investigates individuals’ roles and attitudes toward language policy, thus, in Petrażyckian terms, toward linguistic normative facts. Petrażycki also believed it was necessary to introduce a new paradigm and to reform the social sciences. He tried to classify the social sciences and predicted that the disciplines would become more distinct (Kojder 2010: lxxv). Despite his predictions, interdisciplinarity has come to characterize the social sciences. Leon Petrażycki may not have correctly forecasted the development of the social sciences, but we have seen that many of his ideas can be applied to the sociology of language. These provide a starting point for a different approach to some of its most debated current topics.

Notes 1 Numerous references to linguistics can be found in Petrażycki’s writings. His conception of an unconscious wisdom of language (2010[1908]: 426, 451–​52) has something in common with Alexander von Humboldt’s concept of Weltanschauung and with the Sapir-​Whorf hypothesis of linguistic relativism. Because he wrote in German, Russian, and Polish, Petrażycki often deals with problems of interlingual terminology and of semantics of terminology, which are some of the basic problems of modern translatology (cf., e.g., 1999[1909–​10], § 3). 2 By “minority position” I refer to languages that are in the statistical minority such as Sorbian in Germany, Burgenland Croatian in Austria, and Lemko in Poland, as well as to the languages of communities that find themselves outside their ethnic/​national state territory, and therefore are in a subaltern position relative to another language, such as Slovak in Vojvodina (Serbia) and Ukrainian in Poland. 3 Sociolinguists use the term “language varieties” to refer to the complex language forms used by a group of speakers with similar (i.e., proximate) social and biological characteristics. These varieties consist of all the various languages of a given community, including dialects, jargons, and the standard language. Cf. Lanstyák (2002: 411). 4 Besides sociology of language, the other three are social dialectology (variational linguistics), ethnography of communication, and interactive sociolinguistics. 5 Language policy and planning from the perspective of contemporary sociolinguistic research are discussed in detail by Ricento (2000, 2006), see also Wiertlewska (2012). 6 Petrażycki makes this distinction in regard to all forms of normativity, including aesthetics and morality, but paid much more attention to its relevance in the domain of law. This is why I will mainly speak of law rather than of normativity in general. 7 By norm-​establishing normative facts, Petrażycki means normative facts that bring about normative convictions; by norm-​annihilating ones, he means normative facts aimed at removing them (e.g., repealing laws). 8 Lande here uses the term obowiązujący, a legal technical term in the Polish language, which roughly corresponds to the English terms binding or in force.Analytical philosophers would translate it as valid. However, the Polish language has its own term for validity (ważność). This is why it is advisable to translate obowiązujący as binding—​a further reason being that obowiązujacy, like binding, is a present (active) participle. (Note by eds.) 9 He was writing in Język Polski, a journal that to some extent is still dedicated to linguistic prescription.

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10 Lande also asked whether statistical methods were used in linguistics (1947: 35). 11 An exception is the Kashubian language whose standard, after its official recognition by the Polish state in 2005, is still consolidating. 12 Lower Sorbian falls into the category of critically endangered languages (Sokolović 2014: 166). 13 On the Petrażyckian concept of “statute” in this context, see Fittipaldi (2016b: 525). 14 From the Petrażyckian perspective, for there to be a judgment in a legal-​theoretical sense there must be a conflict between incompatible legal convictions. However, the Petrażyckian perspective does not rule out the possibility that a person may experience a certain usage as a corruption of the “dignity” of “her” language, whereas another person may have the opposite view. This is enough to characterize such a conflict as a legal conflict in a Petrażyckian sense. Disagreements about linguistic usages may be quite vehement (on the connection between aggression and law from a Petrażyckian perspective, see Chapter 7, in this volume). 15 To be sure, Dubravko Škiljan (1988: 118) discussed four variants, including Bosnian and Montenegrin. In Montenegro, Montenegrin is now the standard language. In Bosnia, Bosniaks (Bosnians of Islamic heritage) tried to develop their own independent language variety, whereas Bosnian Serbs and Bosnian Croats adopted as their standard languages those developed in Serbia and Croatia, respectively. 16 Petrażycki distinguished normative from teleological norms by the presence of means-​ end thinking in the latter and its absence in the former.Thus, Petrazycki conceptualized normative norms as norms according to which a certain action should (or should not) be performed for its own sake. Then, he further divided normative norms into a­ esthetic and ethical norms by the presence of mystic-​authoritativeness in the latter and its absence in the former. Finally, Petrażycki separated ethical norms into legal and moral norms by the presence of attributiveness in the former and its absence in the latter (on attributiveness, see Glossary, and Chapter 7). Petrażycki first regarded linguistic prescriptivism as an aesthetic phenomenon, but it seems that he might have subsequently changed his mind in this regard (cf. Lande 1959[1948]: 826). 17 Petrażycki identified two kinds of customary normativeness: the antiquity-​modeled and the novelty-​modeled. In the first kind, “the principle is, the older, the more binding; in the second the principle is, the more widespread, the more binding” (cf. Fittipaldi 2016a: 487–​8). This chapter discusses the antiquity-​modeled. 18 Petrażycki’s normative and teleological motivations roughly correspond to Max Weber’s value-​rational and instrumentally rational actions. See Chapter 5, in this volume. 19 On such projects, see, for example, www.hf.uio.no/​multil​ing/​engl​ish/​proje​cts/​flags​ hip-​proje​cts/​standa​rds/​index.html (accessed February 15, 2018). 20 On Petrażycki’s openness on this issue, cf. Lande (1959[1948]: 826). In principle, the very same action may be variously experienced as legally, morally, or aesthetically obligatory depending on the individual (cf. Fittipaldi 2016a: 467). This is not to deny that certain obligations are mostly experienced as legal, moral, or aesthetical, respectively. 21 I distinguish linguistic dogmatism from linguistic prescriptivism (which corresponds to linguistic dogmatics, in Lande’s terms) above, in “Definitions of Concepts” section. 22 “One of the biggest obstacles to overcome in convincing authoritarians about the benefits of a free society is their inability to accept the fact that order … can be an emergent property of individual action. For them, all facets of life have to have some sort of grand blueprint implemented by expert sovereigns. They cannot conceive of

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the economy, culture, infrastructure, morality, or society itself as a bottom-​up result of billions of autonomous individual actions” (Wilde 2003: np). Even though Petrażycki believed in the possibility and the need of a legal policy, he also repeatedly underscored, not only the unconscious economic wisdom of, say, Roman law, but also the unconscious wisdom of [naive] language, especially when it comes to the categorization of reality (see e.g., 2010[1908]: 426 and 451, see also note 1).

References Bratt Paulston, Christina, 1998. Linguistic Minorities in Central and Eastern Europe: An Introduction. In Christina Bratt Paulston and Donald Peckham (eds.), Linguistic Minorities in Central and Eastern Europe. Bristol: Multilingual Matters. Costa, James, 2016. Minority Language Standards in Scotland. www.hf.uio.no/​multil​ing/​engl​ ish/​proje​cts/​post​doc-​proje​cts/​jame​sco/​ [accessed on May 12, 2016]. Dittmar, Nobert, 1997. Grundlagen der Soziolinguistik –​ein Arbeitsbuch mit Aufgaben. Berlin: De Gruyter. Dolník, Juraj, 2010. Teória spisovného jazyka (so zreteľom na spisovnú slovenčinu). Bratislava:Veda. Dudok, Miroslav, 2006. Jazyková identita enklávnej a diasporálnej slovenčiny a preventívna lingvistika. In Slovakistický zborník 1. Nový Sad: Slovakistická vojvodinská spoločnosť: 7–​18. Fittipaldi, Edoardo, 2016a. Leon Petrażycki’s Theory of Law. In Enrico Pattaro and Corrado Roversi (eds.), Legal Philosophy in the Twentieth Century:The Civil Law World,Tome 2: Main Orientations and Topics Dordrecht: Springer. Fittipaldi, Edoardo, 2016b. Jerzy Lande. In Enrico Pattaro and Corrado Roversi (eds.), Legal Philosophy in the Twentieth Century:The Civil Law World,Tome 2: Main Orientations and Topics Dordrecht: Springer. Fishman, Joshua A., 1972. The Sociology of Language: An Interdisciplinary Social Science Approach to Language in Society. New York, NY: Newbury House Publishers. Kojder, Andrzej, 2010. Žizn’ i tvorčestvo Leona Petražickogo. In Leon Petrażycki (Elena V. Timoshina ed.), Teorija i politika prava. Izbrannye trudy. St. Petersburg: University Publishing Consortium Law Press. Kryżan-​Stanojević, Barbara, 2008. Ekolingvistika i norma –​granice preskripcije. In Riječki filološki dani VII. Rijeka: Filozofski fakultet: 683–​91. Lande, Jerzy, 1947. W sprawie polityki językowej. Język Polski, XXVII, 2: 33–​8. Lande, Jerzy, 1959[1948]. O ocenach. Uwagi dyskusyjne. In Jerzy Lande (Kasimierz Opałek, ed.), Studia z filozofii prawa. Warsaw: PWN. Lane, Pia, 2014. Minority Language Standardization and the Role of Users. Language Policy, 14, 3: 263–​83. Lanstyák, István, 2002. Maďarčina na Slovensku –​štúdia z variačnej sociolingvistiky. Sociologický časopis/​Czech Sociological Review, 38, 4: 409–​27. Nekvapil, Jiří, 2002. Úvodem k monotematickému číslu “Sociolingvistika a sociologie jazyka”. Sociologický časopis/​Czech Sociological Review, 38, 4: 405–​8. Neustupný, Jiří V., 2002. Sociolingvistika a jazykový management. Sociologický časopis/​Czech Sociological Review, 38, 4: 429–​42. Petrażycki, Leon, 1911. Akcii, birževaja igra i teorija ėkonomičeskih krizisov. St. Petersburg: Tipografija Merkuševa.

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Petrażycki, Leon, 1999[1909–​10]. Teorija prava i gosudarstva v svjazi s teoriej nravstvennosti, 2nd edition. Serbian translation by Petar Bunjak, Teorija prava i države u vezi s teorijom morala. Podgorica: CID. Petrażycki, Leon, 2010[1896–​97]. Vvedenie v nauku prava. In Leon Petrażycki (Elena Timoshina ed.), Teorija i politika prava. Izbrannye trudy. St. Petersburg: Universitetskij izdatel’skij konsortium. Petrażycki, Leon, 2010[1908].Vvedenie v izučenie prava i nravstvennosti. Osnovyėmocion al’nojpsihologii. 3rd edition. In Leon Petrażycki (Elena Timoshina ed.), Teorija i politika prava. Izbrannye trudy. St. Petersburg: Universitetskij izdatel’skij konsortium. Petrażycki, Leon, 2010[1913]. K voprosu o social’nom ideale i vosroždenii estestvennogo prava. In Leon Petrażycki (Elena Timoshina ed.), Teorija i politikaprava. Izbrannyetrudy. St. Petersburg: Universitetskij izdatel’skij konsorcium. Petrażycki, Leon, 2011[1909–​10].Teorija prava i gosudarstva v svjazi s teoriej nravstvennosti. 2nd ed. Abridged English translation Theory of Law and State in Connection with a Theory of Morality. In Leon Petrażycki (Nicholas S. Timasheff ed.), Law and Morality: Leon Petrażycki, with a new introduction by A. Javier Treviño. Piscataway, NJ: Transaction Publishers. Puppel, Stanisław, 2007. Interlingwalizm czy translingwalizm? Interkomunikacja czy transkomunikacja? Uwagi w kontekście współistnienia języków naturalnych w ramach globalnej wspólnoty kulturowo-​językowo-​komunikacyjnej. In Stanisław Puppel (ed.), Społeczeństwo-​kultura-​język. W stronę interakcyjnej architektury komunikacji. Poznań: KEKO UAM: 79–​94. Radovanović, Milorad, 1986. Sociolingvistika. Novi Sad: Dnevnik. Rajić, Ljubiša, 1983. Teorijske osnove planiranja jezika. In Jezik u savremenoj komunikaciji. Beograd: Centar za marksizam Univerziteta u Beogradu: 174–​94. Ricento, Thomas, 2000. Historical and Theoretical Perspectives in Language Policy and Planning. Journal of Sociolinguistics, 4, 2: 196–​213. Ricento, Thomas, 2006. An Introduction to Language Policy: Theory and Method. Oxford: Blackwell. Sesar, Dubravka, 1996. Putovima slavenskih književnih jezika. Pregled standardizacije češkoga i drugih slavenskih jezika. Zagreb: Zavod za lingvistiku Filozofskoga fakulteta Sveučilišta u Zagrebu. Sokolović, Dalibor, 2014. O manjinskim slovenskim jezicima iz perspective ekologije jezika na primeru Lužičkih Srba i vojvođanskih Slovaka. Doktorska disertacija. Filološki fakultet u Beogradu. Škiljan, Dubravko, 1980. Pogled u lingvistiku. Zagreb: Školska knjiga. Škiljan, Dubravko, 1988. Jezična politika. Zagreb: Naprijed. Uhlířová, Ludmila, 2002. Jazyková poradna v měnící se komunikační situaci u nás. Sociologický časopis/​Czech Sociological Review, 38, 4: 443–​56. von Hayek, Friedrich A., 1982[1973–​79]. Law, Legislation and Liberty: A New Statement of the Liberal Principles of Justice and Political Economy. London: Routledge & Kegan Paul. Wiertlewska, Janina, 2012. Language Planning and Language Policy in the Ecological Perspective. Glottodidactica, XXXIX: 117–​26. Wilde, Jonathan, 2003. The blogosphere: a kosmos. www.dist​r ibu​tedr​epub​lic.net/​archi​ves/​ 2003/​11/​28/​the-​blog​osph​ere-​a-​kos​mos/​ [accessed on October 20, 2016].

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action representation:  representation having as its →object an action. adequate theory:  →theory that satisfies the principle of adequacy, that is, the principle that the →class of →objects, or →class-​concept on which a property is predicated (→class-​subject) should be neither “limping” nor “jumping.” A limping theory is a theory, the class-​subject of which is too narrow. In this case, there exists at least one object that has the predicated property without coming within its class-​subject. A Petrażyckian example of a limping theory is that cigars are subject to the law of gravity, which holds true not only for cigars but for all particles. A jumping theory is a theory, the class-​ subject of which is too broad. In this case, there exists at least one object that comes within the class-​subject without having the predicated property. A Petrażyckian example of a jumping theory is Marx’s historical materialism given that, according to Petrażycki, not all social phenomena are determined by relations of production (see Chapter 5). →subject2; →judgment aesthetic emotion:  →appulsion or repulsion toward the performance of a certain →behavior that is not characterized by →mystic-​authoritativeness. →|normative emotion|; →|ethical emotion| aesthetic experiences:  →|normative experience| appulsion:  antonym of “repulsion”; emotion urging the performance of some → |behavior|. attributiveness: the inward →experience of the performance of a certain behavior as owed to a person (from the Latin adtribuere,“to ascribe”). By using a language mirroring a projective worldview (→projection), attributiveness can be defined as the experience of a certain behavior as the object of somebody’s → right (where a right is a projection). →Chapter 7

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behavior:  hypernym for (1) action, (2) abstention from an action, or (3) tolerance of an action. In general, when Petrażycki speaks of behavior, he refers to → objects of →perception or →representation because, according to him, actors’ motivations are determined by what they perceive or realistically represent to themselves (→|realistic |representations||) rather than by what is actually the case. In contemporary terms, we may say that Petrażycki holds that motivational processes are affected by the way individuals subjectively “interpret” reality rather than by how reality objectively is. categorical normative conviction: a →||normative| |conviction|| that does not involve →||normative| hypotheses|; for example, one’s conviction that one should not torture sentient beings. →||hypothetical| |normative| |conviction|| class:  all that possesses a certain feature no matter whether in actual reality or only in the imagination. A class is made up of all the →objects that meet a necessary and sufficient condition, regardless of their external existence (e.g., the class of red things includes both London telephone boxes and Donald Duck’s bow tie). →|realistic class|; →|ideologic class|; →class-​concept class-​concept:  the idea of a →class class-​judgment: a →judgment that has a →class-​concept as its →subject2 (e.g., my ascribing to particles their mutual attraction). Causal laws and mathematical theorems are class-​judgments in Petrażycki’s sense. →|non-​class |judgment||; → class-​subject; →theory class-​subject:  →class-​concept of which a property is predicated in a →judgment. → class-​judgment; →theory; →subject2 conviction:  →disposition to experience certain →|emotions|. →||legal| |conviction||; →||normative| |conviction||. customary law: the →class of →||legal| |experiences|| and →||legal| |dispositions|| that a given subject1 justifies by referring to other people behaving in a certain way. Unlike →|intuitive |law||, according to Petrażycki, customary law is very precise, does not easily adapt itself to cultural changes, and leads to cultural stagnation. definitio per idem:  a partly or entirely tautological definition. disposition: a →subject1’s tendency to have certain psychical experiences if certain types of circumstance are instantiated (e.g., the urge to pay the check at a restaurant). dogmatic jurisprudence:  →||legal| dogmatics| duty-​holder:  →legal or →||moral| duty-​holder|. Petrażycki does not speak of aesthetic duty-​holders (→||normative| |experience||) emotion:  passive-​active psychical state that involves both a passive experience and the urge to perform a →behavior. For example, hunger involves both a passive condition and an urge to act (eating). Synonymous with →impulsion ethical:  adjective of →ethics.

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ethical emotion:  →mystic-​authoritative normative →appulsion or repulsion to perform a certain →behavior. →||normative| |emotion||; →|aesthetic emotion| ethical experience:  coupling of an →||ethical| |emotion|| with the →perception or →representation of a certain →behavior. ethical phenomenon: hypernym for →||ethical| |experience|| and ethical → |conviction|. ethics:  →class of all →||ethical| |experiences||. Genus comprising both →law and →morality. →normativity experience (noun): phenomenon taking place within one’s consciousness. → experience (verb) experience (verb): to have something within one’s own consciousness. Petrażycki uses terms that can be rendered as “to experience” (pereživat’ or soznavat’) for sensations, perceptions, representations, emotions, projections, etc. When used in the passive (e.g., “to be experienced as a duty-​holder”), it does not refer to an experienced →duty-​holder but to be perceived by at least one →subject1 as a duty-​holder. The experiencer may be the duty-​holder themselves, the →right-​holder (in the case of →||legal| phenomena|), or a third party. fantastic representation:  →representation not believed to be true by the →subject1 who has it (e.g., the representation of a unicorn—​provided that the subject1 does not believe in its existence). →|realistic |representation|| formalization:  →|unifying tendencies| hypostatization:  →projection hypothetical normative conviction:  →||normative| |conviction|| that involves the →perception or →|realistic |representation|| of an event that within it plays the psychical role of a →||normative| hypothesis|; for example, one’s conviction that, if one breaks a product on display at a shop, they should pay for it. →||legal| hypothesis|; →|categorical |normative| |conviction|| ideologic class:  →class that comprises only inexistent (or fantastic, “ideal”) → objects. Examples are centaurs and right triangles. →|realistic |class|| imperative emotion (or moral emotion):  →||ethical| |emotion|| that urges somebody to perform a certain →behavior, provided its performance is not experienced as ascribed, or “belonging” to somebody else. It is called “imperative” because its experiencer may hear, as it were, an inner →mystic-​ authoritative voice that commands (Latin: imperat) the performance of some behavior. This emotion may be experienced by a →duty-​holder and/​or by a third party. →morality; →||imperative-​attributive| |emotion|| imperative-​ attributive emotion (or legal emotion):  →||ethical| |emotion|| that urges somebody to perform a certain →behavior, provided its performance is experienced as ascribed, or “belonging” to somebody else. It is called “imperative-​attributive” because its experiencer may hear, as it were,

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an inner →mystic-​authoritative voice that at once commands (Latin: imperat) and ascribes (Latin: adtribuit) the performance of some behavior.This emotion may be experienced by a →duty-​holder, and/​or by a →right-​holder, and/​or by a third party (who experiences the duty-​holder’s behavior as owed or ascribed to the right-​holder). For a legal emotion to occur, it suffices that its experiencer exist, no matter whether it is the right-​holder, the duty-​holder, or a third party. Thus, a legal emotion may exist exclusively within a third party. Petrażycki’s example is a person who attends a theatrical performance and becomes angry at a character for wronging another character. According to Petrażycki, people often have incompatible legal emotions, which may result in conflicts. This occurs, for example, when Ego experiences themselves as entitled to Alter’s behavior while Alter does not have a complementary experience, or when both Ego and Alter experience themselves as the exclusive owners of the same thing. Petrażycki maintains that the conflict-​ generating nature of legal emotions is partly counteracted by →|unifying tendencies|. →law; →imperative emotion; →attributiveness; →Chapter 7 impulsion:  synonymous with →emotion intuitive law: the →class of →||legal| |experiences|| that a given →subject1 believes does not need to be justified (or that it would be absurd to justify) by referring to some →||normative| fact|. For example, for some people, the → ||legal| |conviction|| that sentient beings should not be tortured does not require any justification through such normative facts as treaties, customs, or statutes. Unlike →|customary |law||, intuitive law may be quite variable, and it both promotes and adapts itself to cultural change (Petrażycki’s example is women’s rights). →positive law judgment: a →|subject1|’s emotional act constituted by the →appulsion or repulsion toward the ascription of a given →object (predicate) to another object (subject2), or, more precisely, to the connection of a predicate with a subject. Petrażycki distinguishes between →judgments and statements possibly expressing them. The statement “The Vatican is in Rome” expresses the appulsion toward the connection of the logical (i.e., mental) predicate expressed by the grammatical predicate “is in Rome” with the logical subject2 expressed by the grammatical subject “the Vatican.” If a repulsion is involved, we are dealing with a negative judgment. For example, the statement “The Vatican is not in Denmark” expresses a repulsion toward the connection of “is in Denmark” with “the Vatican.” If the subject2 of a judgment is a →class, we are dealing with a →theory. →||normative| |judgment||; →position jumping theory:  →|adequate |theory||. jural:  adjective for “right.” Sometimes “jural” is here used as adjective for “law” in a Petrażyckian sense. lame theory:  synonym of “limping theory.” →|adequate |theory|| law:  →class of all →||legal| |phenomena||.

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legal:  adjective of →law. legal addressee: right-​or legal duty-​holder within a given person’s psyche. → ||legal| subject|; →||normative| addressee| legal consciousness:  all →||legal| phenomena| currently or potentially present within an individual’s consciousness legal conviction: stable →disposition to →experience a →||legal| |emotion|| (e.g., the disposition to pay the check at a restaurant or to experience sentient beings as having the right to not be tortured). legal dogmatician: a person who produces →|legal-​dogmatic |judgments||. Petrażycki maintains that, due to its importance, legal dogmaticians are chiefly concerned with →|official |law||. legal-​dogmatic judgment: a →judgment that connects or disconnects a certain →behavior, state of affairs, or →||normative| fact| with a →|legal| predicate (e.g., “obligatory,” “illegal,” “in force”) and that is based: (1) on one or more →normative facts adopted as binding premises by a →subject1 (→||legal| dogmatician|) and (2) on the current or past occurrence of certain spatio-​ temporally individuated events. The judgment that Barack Obama cannot be reelected President of the United States is based (1) on the 22nd amendment of the US Constitution and (2) on the fact that he was already twice elected to that office. Legal-​dogmatic judgments should not be confused with probabilistic predictions. For example, the correctness of the judgment that Barack Obama cannot be reelected President is independent of the probability that such an attempt would provoke outrage or that it would be prevented. Legal dogmatic judgments are produced mostly by scholars, judges, and bureaucrats, but they can also be produced by laypeople (e.g., when a motorist tries to convince a police officer that something they did does not count as a traffic violation). →||legal| dogmatics|; →|theoretical science| legal dogmatics:  →|subjective-​relational science| based (1) on such |subjective-​ relational |non-​class |judgments|| as the →experience of certain →||normative| facts|—​or dogmas—​as binding and (2) on →|objective-​cognitive |non-​class |judgments|||. Legal dogmatics does not aim at cognizing legal phenomena as they objectively are (→||legal| |theory||), but at formulating subjective-​relational judgments based on certain dogmas. For example, legal dogmatics does not try to state the probability that a person be elected US president more than twice, but to derive from (or justify based on) the 22nd amendment of the US constitution the thesis that they should not be reelected. A →||legal| dogmatician| would usually base such a thesis (1) on her subjective experience of the 22nd amendment as binding and (2) on that person’s having already been elected president twice. Because of socio-​historical reasons, legal dogmatics is mostly concerned with →|official |law||, but nothing prevents a dogmatician from creating their own legal dogmatics based on other normative facts (e.g., the Bible). In a broad sense, legal dogmatics may also refer to a science based on a given dogmatician’s own →|intuitive |law||, as is

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the case of natural law systems, which Petrażycki regards as systematizations of their creators’ own intuitive →||legal| |convictions||. Since legal dogmatics is a subjective-​ relational science, its judgments are not truth-​ apt. Further, Petrażycki denies that the principles of non-​contradiction and of the excluded middle apply. This, though, does not prevent dogmaticians from “wrongly” using them. In this way, dogmaticians develop a socially beneficial sophistry, in that they contribute to the reduction of the conflicts produced by incompatible normative facts (or interpretations) (→imperative-​attributive emotion). →|legal-​dogmatic |judgment||; →||legal| policy| legal duty-​holder:  a being that (1) is experienced as animate, (2) is the object of a →perception or →|realistic ||representation|| and (3) whose →behavior is the object of an →||ethical| |emotion||, and (4) is experienced as owed to another person. →|imperative-​attributive |emotion||; →right-​holder; → |moral |duty-​holder||; →||legal| subject| legal emotion:  →|imperative-​attributive |emotion|| legal experience:  coupling of an →||imperative-​attributive| |emotion|| with the →perception or →|realistic |representation|| of a →behavior.This phenomenon occurs if a →subject1 either experiences themselves as a →right-​holder, or as a →||legal| duty-​holder|, or sympathetically experiences another animate being as a right-​or a legal duty-​holder. For the existence of a legal experience, it suffices that no more than one of the three possible participants exist extrapsychically and that the other extrapsychically inexistent ones exist as the objects of an (illusory) perception or a realistic representation within the psyche of the externally existing one(s) (think of someone watching a movie who becomes angry at what character1 does to character2 due to their [the viewer’s] sympathizing with characterpedex). →||legal| |duty-​holder||; → ||legal| subject|; →||moral| |experience||; →||normative| |experience|| legal hypothesis:  condition that the subject1 must believe is being or has been met for her to →experience a →legal →appulsion or repulsion, or else to have a →||normative| |conviction||. For example, Olivia’s belief that John scratched her new car (legal hypothesis) may give rise, within her psyche, to the legal appulsion of receiving from him a sum of money as compensation for the damage. Legal hypotheses are similar to Wesley Newcomb Hohfeld’s operative facts, except that legal hypotheses are objects of →perceptions or → |realistic |representations|| rather than subject-​ independent, objective facts (this is why the verb “to believe” is used). From a Petrażyckian standpoint, Hohfeld’s neglect of the belief in the instantiation of operative facts and his focus on their actual instantiation is a consequence of his adoption of a → ||legal| dogmatic| standpoint. Petrażycki’s →||legal| |theory|| focuses on beliefs because motivational processes are influenced by subjective beliefs on objective reality not by objective reality per se. →||normative| hypothesis| legal phenomenon: hypernym for →||legal| |experience|| and →||legal| |conviction||.

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legal policy:  →|subjective-​relational science| based (1) on such →|subjective-​ relational |judgments|| as the →experience of certain goals as desirable or undesirable and (2) on such |objective-​ cognitive ||class| |judgments|| as causal laws. In other words, legal policy recommends means to pursue subjectively chosen goals through causal laws. According to Petrażycki, legal policy should aim at the extinction of →ethics and its replacement with →love. → ||legal| dogmatics| legal science:  term often used to refer to →||legal| dogmatics|. legal source:  →||normative| fact| legal subject:  →object experienced as capable of being a →||right|-​ or →||legal| |duty-​holder||. For some object to be a legal subject, it is not necessary that it exist outside the →subject1’s psyche.What is necessary is (1) that it be the object of a →|perception| or →|realistic ||representation||—​i.e., that it be believed to exist extrapsychically—​, (2) that it be experienced as animate, and (3) that → ||legal| |emotions|| be directed toward its →behavior. Examples in this sense include people, animals (in some legal cultures), states, treasuries, corporations, dolls (in children’s legal psyche), as well as god(s), goblins, ancestors, future generations (depending on the legal culture being considered), the Hellespont (in Xerxes’s psyche—​at least). If the characters in a theatrical performance produce legal emotions within a spectator, those characters are legal subjects within that spectator’s psyche. Petrażycki deals with legal subjects in this way because he maintains that people orient themselves to what they believe to be the case, not to what is actually the case. As such, slaves are legal subjects because they are capable of being legal duty-​holders (this is not true, instead, for objects not experienced as animate.) →normative addressee legal theory:  →|objective-​cognitive science| made up of →|objective-​cognitive |class| |judgments|| on →||legal| phenomena|. In a broad sense, legal theory also comprises →|objective-​cognitive non-​class judgments|, such as those found in legal history. limping theory:  →|adequate |theory|| love (as the ultimate ideal for ||legal| policy|):  benevolence, or sympathetic proactive concern for others, including current and future humanity as a whole, as distinct from the love for one’s partner, relatives, and friends. According to Petrażycki, human culture has a tendency toward the replacement of →law and →morality with love not only for humans but also for all sentient beings. Petrażycki held that the acceleration of this tendency should be the ultimate goal of →||legal| policy|. In his early writings, Petrażycki treated love as an →ethical ideal. After developing his theory of law, he characterized it as an extralegal and extramoral ideal. moral:  adjective of →morality. moral duty-​holder:  a being that (1) is experienced as animate, (2) is the object of a →perception or →|realistic |representation||, and (3) whose →behavior is the object of an →||ethical| |emotion|| but (4) is not experienced as

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owed to another person. →|imperative |emotion||; →||legal| duty-​holder|; → ||legal| subject| moral emotion:  →|imperative |emotion|| moral experience:  coupling of an →imperative emotion with the →perception or →|realistic |representation|| of a behavior. This phenomenon occurs if some subject1 either →experiences themselves as a →||moral| |duty-​holder|| or sympathetically experiences another animate being as a moral duty-​holder (e.g., contagious shame). For the existence of a moral experience, it is only necessary that one of the two participants externally exist and that the other externally inexistent one exist solely as the object of an (illusory) perception or realistic representation within the psyche of the externally existing one (think of a person experiencing themselves as having a moral obligation toward a deity).→||moral| |duty-​holder||; →||legal| subject|; →||legal| |experience|; →||normative| |experience|| moral phenomenon:  hypernym for →||moral| |experience|| and →||moral| |conviction|| morality:  →class of all →||moral| |phenomena||. mystic-​authoritativeness:  the experience of certain repulsions or →appulsions as if stemming from an authoritative inner agency endowed with a mystic coloration. This inner agency is what is often referred to as one’s “conscience.” Petrażycki uses mystic-​authoritativeness as the differentia specifica of the →class of →||ethical| phenomena| within the broader class of →||normative| phenomena|. non-​class judgment: judgment concerning spatio-​ temporally individuated phenomena (e.g., my connecting the Lincoln Memorial with its existence or my connecting a specific person with the right to behave in a specific way). → class-​judgment norm:  content of a →||normative| |judgment||. →Chapter 6. normative:  →normativity. normative addressee: cognitive component of a →||normative| |phenomenon||. Normative addressees may be →classes of →objects or spatio-​ temporally individuated ones, provided that (1) they are the objects of → perceptions or →|realistic |representations||, (2) that they are experienced as animate, and (3) that they are experienced as right-​or duty-​holders. This broad conceptualization is necessary in order to also consider normative both beliefs found in cultures other than modern secular ones (e.g., cultures where rights or duties are ascribed to mountains or deities) and some normative beliefs recently emerging in secular ones (rights ascribed to specific rivers or the planet Earth). When the class of normative addressees is “all,” we are dealing with absolute duties or rights. →|legal| subject|| normative conviction:  (stable) disposition to have a →||normative| |experience||. Petrażycki seems to assume that normative experiences can also be had without a pre-​existing normative conviction.

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normative emotion:  →appulsion or repulsion toward the performance of a certain action for its own sake, rather than as a means to obtain some result other than its performance. According to Petrażycki, appulsions and repulsions—​ including normative ones—​may give rise to →projections like obligations or → rights. →||normative| |experience|| normative experience: coupling of a →||normative| |emotion|| with the →perception or →|representation| of a certain behavior. Normative experiences cause people to perform, endure, or abstain from certain actions not in order to pursue given goals but for their own sake (or else cause them to experience regret for not having behaved accordingly). Such experiences are the basis of →||normative| motivations|, as distinct from →|teleological motivations|. Petrażycki distinguishes normative experiences into →||ethical| |experiences|| and →|aesthetic| ones depending on whether the involved emotions have a →mystic-​authoritative nuance. Further, he divides ethical emotions into →|legal| and →||moral| |experiences|| depending on whether the action subject to →appulsion or repulsion is experienced as owed to someone (→right-​holder). →||moral| |experience||; →||legal| |experience||; →||normative| |conviction|| normative fact:  fact (1) that the →Subject1 believes took or is taking place and (2) that in her consciousness plays the role of justification of a →||normative| |experience|| or →conviction. Examples may be a prestigious text (a sacred text, a code of laws) mandating a certain behavior, people acting in a certain way, a prophet abstaining from a certain action, a court convicting somebody for doing something, insofar as the beliefs in such facts call into being within Subject1 →||normative| phenomena|. From a legal-​theoretical perspective (→||legal| |theory||), for a fact to be a normative fact, it suffices that the subject1 believe in its current or past existence. Its objective existence is not necessary. Normative facts are therefore →objects of →perception or →|realistic |representation|| rather than subject-​independent, or objective facts. The investigation of normative facts as objective facts pertains to →||legal| dogmatics|, in which the counterpart of normative facts is “normative sources.” In Petrażycki’s legal theory, normative facts are conceptualized as contents of consciousness rather than as external facts because he holds that external facts can influence the motivation of social actors only insofar as they believe in their existence and only in the way those actors construe them. Despite stressing that social actors’ opinions on normative facts may differ, Petrażycki also contended that in most cases opinions on them converge, thus resulting in an overall reduction of the social conflicts caused by incompatible normative convictions. →|positive |law||; →|intuitive |law||; →|imperative-​attributive |emotions||; →|unifying tendencies|. normative hypothesis: condition that the subject1 must believe is being or has been met for her to →experience a →normative →appulsion or repulsion,

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or else to have some →||normative| |conviction||. For example, Maria’s belief that her friend Bill is in financial need (normative hypothesis) may give rise, within her psyche, to the appulsion to lend him some money (normative consequence). Normative hypotheses are only a possible cognitive component of →||normative| phenomena|; in their absence, we are dealing with →||categorical| |normative| |convictions||. Petrażycki’s normative hypotheses are objects of →perceptions or →|realistic |representations||, that is, objects of belief. This is because he maintained that the objective instantiation of a normative hypothesis cannot per se play a motivational role unless the subject1, or a social actor, believes in its instantiation. This also implies that beliefs may play a motivational role when false (e.g., Othello’s belief that Desdemona was unfaithful to him). Whether a normative hypothesis is true is a matter for normative-​dogmatic sciences (e.g., →||legal| dogmatics|) as distinct from normative-​theoretical ones (e.g., →||legal| theory|), which are concerned with the impact of the belief in a normative hypothesis on social actors’ motivations, regardless of its actual truth. →|hypothetical |normative| |conviction||; →|categorical ||normative| |conviction||| →||legal| hypothesis| normative judgment:  connection (or disconnection) of a given →subject2 (e.g., the action of torturing a sentient being) with a →normative predicate (e.g., prohibited). normative jurisprudence:  →legal dogmatics normative motivation:  motivation to perform a →behavior for its own sake, that is, not in order to achieve some goal. A necessary component of normative motivations is →||normative| |emotions||. →|teleological motivation| normative phenomenon: hypernym for →||normative| |experience|| and → ||normative| |conviction||. normative source:  →||normative| fact| normativity:  →class of all →||normative| |experiences||. object:  content of a state of consciousness capable of playing the role of →subject2 or predicate in a →judgment. When Petrażycki speaks of “objects,” he is speaking of objects of →perceptions or →representations. In some contexts, “object” may refer to “subject-​matter.” objective-​ cognitive class judgment:  →theory. →|objective-​cognitive |judgment|| objective-​cognitive judgment:  →|judgment| concerning what exists and how it exists without any expression of subjective attitudes (e.g., the judgment that the Vatican is in Rome). Petrażycki contrasts these judgments with → |subjective-​relational |judgments||. Unlike these latter, objective-​cognitive judgments are truth-​apt (where truth is conceived as correspondence with objective reality). Definitionally, Petrażycki’s objective-​cognitive judgments are value-​free in Max Weber’s sense. →|objective-​cognitive sciences|

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objective-​cognitive non-​class judgment:  objective-​cognitive →|non-​class |judgment||. →|objective-​cognitive |judgment||; →|objective-​cognitive science| objective-​cognitive science (or theoretical science in a broad sense): science consisting of →|objective-​cognitive |judgments|| (called “theses”). These theses can be justified exclusively with other objective-​cognitive judgments (called “bases”), without recourse to |subjective-​relational |judgments||. Petrażycki adopts the correspondence theory of truth and, unlike |subjective-​ relational |judgments||, regards objective-​cognitive judgments as truth-​apt. He also distinguishes between theoretical sciences in a broad sense, which are made up of theories, and theoretical sciences in a broad sense, which are made up of |objective-​cognitive ||non-​class |judgments|||. →|subjectiverelational sciences|; →Chapter 5, the “Petrażycki’s New Classification of the Sciences” section. official law:  →||legal| |convictions|| that are the object of application and support by the representatives of state authority (officials) while in the line of duty to serve society—​as distinct from their legal convictions as private citizens. An example is a police officer’s conviction that, in their official capacity, they have the right to stop drivers who run red lights (as distinct from their conviction that they have the right to reproach their daughter for teasing her brother). For official law, it is not necessary that officials actually serve society, but only that they be →|experienced| as having that duty (which implies that their non-​discharge of those duties elicits legal repulsions). perception: thought →object that (1) results from the →subject1’s completion of → sensations with representations and recollections and (2) acquires the livelihood of the sensations by which it is triggered. For example, my perception of a die results from my completion of the visual sensation of two or three of its sides with my recollections of past dice I have seen. The perception of an object always involves a creative activity by the subject1. This may result in illusions, like the mistaken perception of a puddle of water on a highway during a hot day based on my correct visual sensation of a transparent liquid on that highway (heat haze). The sensation is correct. The way it is turned into the perception of a mirage is not. positive law: the →class of →||legal| |experiences|| that a →subject1 justifies by referring to a →||normative| fact|. →|intuitive |law||. position: component of a →judgment that cannot be further analyzed into smaller components. According to Petrażycki, the vast majority of judgments contains more than one position. For example, the judgment expressed by the statement “Zeus is sleeping” contains the positions that Zeus exists and that there exists such an activity as sleeping. Petrażycki maintains that most thinking is in the form of positions. For example, we do not usually connect the |subject2| torturing sentient beings with the predicate is wrong but directly

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experience an →ethical repulsion when representing to ourselves them as being tortured. positivization: the tendency to make normative, and especially →||legal| phenomena| contingent on →||normative| facts|. Petrażycki holds that positivization is a tendency that counteracts the conflict-​producing nature of → law.→|unifying tendencies| practical sciences:  →|subjective-​relational sciences| principle of adequacy:  →|adequate |theory|| projection: the (illusory) ascription of a quality to something as the result of a subjective attitude. Petrażycki’s examples are the appetizingness of a roast or the shamefulness of a lie. These ascriptions are wrong because, according to him, appetizingness or shamefulness exist only within the experiencer’s psyche. In certain cases, projections may produce the (illusory) belief in the existence of full-​blown things (like debts or rights) rather than mere qualities. Some of Petrażycki’s followers refer to projections as “hypostatizations.” realistic class:  →|class| that also comprises really existing objects (e.g., the class of cities comprises both Duckburg and Tokyo). →|ideologic |class|| realistic representation:  →|representation| believed true by the →|subject1| who has it—​regardless of its actual truth (e.g., a contemporary person’s representation of the Statue of Liberty, a child’s representation of Santa Claus, or an Ancient Greek’s representation of Zeus). →|fantastic |representation| representation: presence within the →|subject1|’s consciousness of an → |object| not caused by an attendant →|sensation|. For example, a representation occurs when a subject1 forms within her consciousness the image of the Statue of Liberty without that representation being caused by her currently observing it (→|perception|). According to Petrażycki, objective reality cannot directly influence actors’ motivational processes unless converted into objects of representation or perception. This implies that individuals may also act on false beliefs (including, e.g., the belief in the existence of goblins or devils). In contemporary terms, Petrażycki maintains that actors do not orient themselves to objective reality, but to how they interpret it. →|realistic |representation|| and →|fantastic |representation||. See also Chapter 5 right:  →projection resulting from →|imperative-​attributive |emotions||. right-​holder:  being that is →|experienced| (1) as animate, (2) as the →|object| of a →|perception| or a →|realistic |representation||, and (3) as having the → |right| that other individuals (→||legal| |duty-holders||) perform a certain →|behavior|—​including the tolerance of certain actions of the →|right-​ holder| (e.g., punishments, expressions of opinion on sensitive topics). →|legal |duty-​holder||; →|legal subject|

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sensation:  →|experience| produced by one of our five senses. →|perception|; → |experience| sociology of law:  →||legal| |theory|| and →Chapter 5 source of law:  →||normative| fact| standardization:  →|unifying tendencies|: →Chapter 12 subject1:  each of us solipsistically understood. It can refer to the social actor with her conceptions (and misconceptions) about objective reality. According to Petrażycki, a motivational explanation of behaviors always requires that we focus on social actors’ subjective beliefs because motivation is influenced not by reality but by beliefs about reality, including social reality. Thus, if a social actor believes in the existence of the devil and ascribes to him a right over her soul, for that social actor the devil is a →||legal| subject|, and therefore accountable to →||legal| |theory||. subject2: the →|object| of predication in a →|judgment|. subjective-​ relational class judgment:  subjective-​relational →||class| |judgment||. →|subjective-​relational |judgment|| subjective-​relational judgment:  →judgment expressing an attitude of its experiencer toward a certain →object (e.g., “The US Constitution is in force” or “Canadians are nice”). According to Petrażycki, subjective-​relational judgments are not truth-​apt. →|subjective relational sciences| subjective-​relational non-​class judgment:  subjective-​relational →|non-​class |judgment||. →subjective-​relational judgment subjective-​relational science: science made up of →|subjective-​relational |judgments||, or “theses.” Such theses must be based on at least one subjective-​ relational judgment. In subjective-​ relational sciences, a role can also be played by →|objective-​ cognitive |class| |judgments|| and → |objective-​cognitive non-​class |judgments||, as in legal policy and legal dogmatics, respectively. Petrażycki maintains that the truth-​inaptness of the subjective-​relational judgments on which the theses of subjective-​relational sciences are based involves the truth-​inaptness of the theses of such sciences. In his early writings, in lieu of “subjective-​relational,” Petrażycki used “practical.” →Chapter 5, the “Petrażycki’s New Classification of the Sciences” section. teleological motivation:  motivation to perform a certain behavior as a means to achieve or avert a certain result. It is irrelevant whether that result is per se the object of a normative attitude. For example, it may be a state of affairs toward which the subject1 has a selfish →|appulsion| (becoming rich) or one toward which she has a normative appulsion (addressing child starvation in Africa). What matters is only that she adopts means-​end thinking. →||normative| motivation| theorem of n +​1 theories:  if there are n species of objects belonging to the same genus, there must necessarily be at least n +​1 →theories, one for each

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species plus one for the genus encompassing all of them. For example, in the case of Euclidean convex polygons, we have 3 theories: (1) the sum of the interior angles of triangles is 180°, (2) the sum of the interior angles of convex polygons other than triangles is >180°, and (3) the sum of the interior angles of convex polygons is ≥ 180° (example by e.f.). theoretical science:  →|objective-​cognitive science| made up of →|objective-​ cognitive judgments|. Strictly speaking, theoretical sciences are only those made up →|of objective-​cognitive |class| |judgments|| (e.g., physics). More broadly, they also include sciences made up of →|objective-​cognitive non-​ class |judgments|| (e.g., history). In this latter sense, “theoretical science” is synonymous with →|objective-​cognitive science| theory:  →|objective-​cognitive |judgment|| constituted by the →|appulsion| or repulsion toward the connection of a predicate to a →|class| of →|objects|, or →|class-​subject| (→|subject2|). For example, a theory is that, as far as triangles are concerned (subject2), the sum of their internal angles is 180° (predicate), or that, as far as particles are concerned (subject2), they attract each other with a force that is directly proportional to the product of their masses and inversely proportional to the square of their distance (predicate). Sometimes, Petrażycki uses “theory” in a broader sense to refer to sciences consisting of several theories (e.g., “theory of law”) or to sciences consisting of →|objective cognitive non-​class |judgments|| (e.g., history). →|theoretical science|; →|adequate theory| unification:  →|unifying tendencies| unifying tendencies: phenomena that counteract the conflicts produced by → |law|. Among them, Petrażycki mentions: → 1.  |positivization|, 2.  the tendency of legal concepts toward precision and definiteness of content and scope (e.g., the tendency to set deadlines in terms of exact numbers of days rather than “reasonable amounts of time”), 3.  the tendency of the psychical existence of →||legal| |phenomena|| to depend on facts, the existence of which can be easily verified (e.g., the existence of a legal instrument), and 4. the tendency to subject legal disputes to third party adjudication (broadly understood, as to include a parent solving a dispute between their children).

Note * This Glossary is intended as a tool for understanding some chapters in this volume and does not aim at completeness. It clarifies the meaning of terms used by Leon Petrażycki in his writings.The term “subject1,” was not used by Petrażycki, but has been introduced to clarify the meaning of related Petrażyckian terms. For some other terms (e.g., “legal phenomenon”), a more precise definition has been given than the one that can be reconstructed based on Petrażycki’s writings. Arrows (→) refer to other entries in the

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Glossary. If an arrow is followed by a pipe (|), the entry it refers to is an entire phrase beginning with the word following the first pipe and ending with the word preceding the next one (e.g., →|subjective-​relational sciences|). In the case of multiple pipes, the reference is to entries for both an entire phrase and its components (e.g., →||legal| |conviction|| refers to three entries “legal conviction,” “legal,” and “conviction”). In each entry, the arrow is used only on the first occurrence of a term. If the arrow precedes a plural form of a noun or a conjugated verb the reader should search for its singular or plain form, respectively. The singular “they” is used throughout with the exception of →subject1, which is treated as feminine, and of some examples where for the sake of clarity he and she are used.

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INDEX

adaptation: egocentric 64n22; as foundation of sociology 241; phylocentric 64n22; social and psychological 40, 43n23, 108, 109, 110, 121; unconscious 17, 55, 58, 121 adequacy, principle of 49, 60, 103–​105, 106, 150, 155, 158, 170, 174–​175, 194, 264 administrative law 80 aggression 149–​155, 159, 166n61, 166n63 aggressor, identification with see identification with the aggressor Albert, Hans 119n12, 162n22, 240n16, 241n24 Alexander II: assassination of 7, 8; great reforms (1861) 1, 7, 8, 79, 89n39; judicial reforms (1864) 1, 7; Polish policies of 7 Alexander III 8 anarchism 17, 20, 32 Anglophone reception of Petrażycki: awareness of, poor 1, 19; common law unfamiliarity with civil law traditions 71–​77; translations, inadequacy of 71 animal rights 83 art: definition of 78, 88n35; law as 74, 87n17, 88n28; Petrażycki’s work as 77–​79; sociology of 115 Athens, Lonnie H. 20, 150, 156, 158–​160, 161–​162n18, 165n59, 165–​166n60, 166n62 Austin, John 140n18, 206n23, 224n4

authority: authority rights 202; as compound jural relationship 162n18; legal norms, authority of, greater than deities 234; and legitimacy 180; linguistic 250; paternal 177; private 214; public 15, 31, 41n4, 50, 112, 171, 180, 214, 219, 225n12; superstate authorities 210, 223, 224n4 behaviorism 178 Bentham, Jeremy 64n26, 211 Bible 236, 237, 250, 254, 268 Bolsheviks 10, 33, 41n7; see also Russia, revolution (October 1917) Brentano, Franz 101 Carbonnier, Jean 177, 181 centralized vs. decentralized law 219 Chicherin, Boris 8, 17, 35, 230 Christian anti-​legalism 10–​11, 17, 79; see also Tolstoy, Leo N. Civilpolitik 31 class 101, 104, 107, 111, 119n14, 120n15, 120n22, 174, 265, 275 cognitive psychology 153 common law vs. civil law: Anglo-​American unfamiliarity with P’s context 71–​77; flexibility vs. clarity and certainty 80–​82 communication: appresentation 198; behavior not excludable from concept of 201; as constitutive basis of law 199, 200; invariants 199; linguistic 198; as link

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between individual and social 198–​199; meaningful creation as text creation 200; mutual understanding required by 198; paradox of 198–​199 communicative theory of law: correlative rights and duties as main elements of 202; intersubjectivity 202; majority extraction of similar norms from legal text 202; as operationally complete cycle 202–​203; space of 203; symbolism 203 communism 47–​61; see also Marxism complementary and disparate societies 49, 63n8 Comte, Auguste G. 11, 97, 106, 107 consciousness, legal see legal consciousness Constant, Benjamin 229, 232 Constitutional Democratic Party (KaDets) see Russia constitutionalism 6, 8, 9, 25 constructivism, naïve 41n8, 114 Conte, Amedeo 138n3, 138n4, 138n9, 139n10, 141n31 contradiction see non-​contradiction, principle of corpus planning see language policy Cotterrell, Roger 20, 77, 110, 161n14 Court of Chancery, England 80, 186 crystallization 34, 39, 43n33, 55, 184 customary law 80, 82, 83, 121n26, 127, 140n20, 176, 178, 185, 265 Darwin, Charles 161n9, 194 Darwinism 97, 108; see also social Darwinism deity see religion dogmatics 86n10, 88n27, 115, 120n25, 121n28, 127, 139n9, 211, 220–​222, 227n37, 255, 258; see also legal dogmatics Dostoyevsky, Fyodor 10, 11 Duma, first see Russia Durkheim, Émile 36, 43n31, 97, 101, 205n5, 229, 232–​233, 238–​239, 240n13, 240n14, 240n15 duty see obligation educative impact of law 171 Ehrlich, Eugen 20, 59, 61, 72, 110–​113, 118, 120n25, 121n26, 121n27, 121n28, 176, 177 Emancipation Act of 1861 see Russia emotion: aesthetic 161n8, 264; jural see jural emotions; legal 35, 44n38, 51, 114, 185, 194, 206n22, 212, 215, 222–​223,

234, 235, 237, 258; moral 148, 149, 160; normative see impulsions; normative emotions emotional plebiscite 55 Engels, Friedrich 237, 241n25 entitlement, sense of 149, 150, 156–​158, 161n14, 165n54, 165n55, 240n9 ethics 5, 10, 11, 237 European Union (EU) 212, 223 excluded middle, principle of 269 experience, normative see normative experience facts, normative see normative facts formalism 72, 110, 121n25 Frank, Semyon L. 87n20, 199–​200 freedom, individual 33, 34, 38, 39, 41n8, 42n18 Frege, Gottlob 101 Freud, Sigmund 19, 72, 77, 148, 151, 157, 163n29, 163n30, 164n36, 165n51, 165n56 future generations 212, 213, 215, 219, 270 German Civil Code 1–​2, 57, 75, 81 God see religion Grotius, Hugo 177, 187n3, 220, 225n22 grounded theory 55 Gurvitch, Georges 18, 19; anti-​liberal socialism of 31, 33, 38, 39, 40, 42n17; forms of sociability 36, 37; jural experience 37; as legal pluralist 31, 177; noetic mind 36, 38–​39; normative facts, conception of 36; Petrażycki, relations with 31–​32, 41n6 Hägerström, Axel 30, 172 Hart, Herbert L.A. 77, 211 Hayek, Friedrich von 248–​249 Hegel, Georg W.F. 229 Hohfeld, Wesley N. 75, 269 Holmes, Oliver Wendell, Jr. 74, 85n8, 86n13 Husserl, Edmund 97–​104, 141n31, 143n46, 204n4, 229 hypostatization see normative experience; projection identification with the aggressor 152, 164n36, 164n37 idiotism: ethical 137, 142n43; jural 156, 157; legal 136; normative 142n43 imperative-​attributiveness: evolutionary social selection of 194; and experiences

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of rights and duties 17; imperative-​ attributive experiences, required by notion of law 197; and international law 212; law defined as 16, 33, 50, 170, 174, 194, 196, 255; normative facts, not always connected to 36; projections generated by 34, 43n21; see also sense of entitlement imperativeness 16, 132, 197, 233, 234, 237, 255, 266 impulsions 14, 15–​16, 17, 85n4, 114, 132, 231, 233, 235, 255, 267, 268; see also emotion indignation 77, 147, 148, 150, 151, 153, 154, 160, 162n26, 162n27, 166n61 individualism 11–​12, 13, 32, 33, 38, 40, 41n8, 38n44, 230–​231; see also freedom, individual infection, social 55, 56 inequality and self-​interest in development of positive law 56–​57 interactionism: radical 165n59; symbolic 158, 165n59 interdivine law 213–​216, 235 International Court of Justice 223 international law: anthropomorphism of states 216–​217, 218, 225–​226n22; brotherhood of nations as ideal of 212; and coercion 210, 224n5, 224n6; defining, difficulty of 209–​210, 224n2, 224n3; deniers of international law 210, 224n4; as imperative-​attributive convictions on reciprocal rights and obligations of states and other entities 212–​213; and interdivine law 213–​214, 215–​216; intuitive-​legal principles in 220–​221, 226n34; legal-​dogmatic dimension 220–​222, 227n37; municipal law, analogous to 211; noli me tangere principle 219–​220; official law, gradual development of 223; pacta sunt servanda principle 219–​220; psychological concept of 214–​215, 217–​219, 222–​223; sociological concept of 214–​215, 219, 222–​223; Sumerian civilization 215–​216; superstate authorities 210, 223 International Monetary Fund 223 introspection 10, 14, 19, 77, 79, 114, 231 intuitive law see positive vs. intuitive law Jesus 16, 129, 241n24 judgment (see also position): class 120n22, 273, 276; non-​class 120n22, 271

jural emotions: aggression 149–​155, 159, 166n61, 166n63; anger 151, 152–​155, 162n26, 164n42, 164n47; blanketness of 153; concordant and complementary identification 152–​153; entitlement, sense of 149, 150, 156–​158, 161n14; envy 155; hypertrophic active-​jural psyche 156–​157, 158; hypertrophic passive-​jural psyche 156–​157; indignation 150, 151, 153, 154, 160; moral emotions vs. 148, 162n25; owedness/​attributive nature 148–​149; passive identification with rights-​holders 152; see also Athens, Lonnie H.; Freud, Sigmund; psychoanalysis Jhering, Rudolf von 77–​78, 121n28, 161n14, 165n55, 230 jurisprudence: normative see legal dogmatics; sociological 85n6 KaDets (Constitutional Democratic Party) see Russia Kant, Immanuel 26, 98, 139n14, 211, 230, 240n18 Kelsen, Hans 41n1, 50, 85n7, 111, 142n44, 143n47, 193, 199, 204n4, 206n25, 210–​211, 212, 220, 224n5, 224n6 Kerensky, Alexander 4, 10, 33, 42n14 knowledge and opinion about law 183 Lakoff, George 216 Lande, Jerzy 47, 52, 55–​57, 59, 60, 62n3, 63n15, 100, 108, 109, 110, 120n18, 121n28, 138n9, 142n44, 193, 211, 242n27, 251–​252, 258, 260n8, 261n10, 261n16, 261n20, 261n21 Langdell, Christopher C. 74, 87n14, 87n15 language see language policy; sociology of language language policy: authoritativeness and authenticity 256, 257; corpus planning 246–​247, 251; definition of 246; diglossia 257; aesthetic vs. moral norms 256; implicit vs. explicit linguistic norms 250–​251; intuitive aesthetic norms vs. positive moral norms, individuals conflicted between 256; linguistic descriptivism 248, 249; linguistic dogmatism 247–​248, 258; linguistic prescriptivism 247–​248, 250, 251–​252, 258, 261n16; normative vs. teleological motivation 257; revitalization of minority languages 255–​257;

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standardization 249–​251, 255–​256, 257–​258 (see also unifying tendencies); status planning 246–​247; three stages of 247; see also Slavic languages, standardization of; sociolinguistics law see centralized vs. decentralized law; common vs. civil law; customary law; educative impact of law; interdivine law; international law; natural law; official vs. unofficial law; positive vs. intuitive law; Roman law; statutory law legal consciousness 3, 9, 15, 16, 17, 18, 19, 44n38, 89n39, 178, 179, 185, 206n24 legal culture 2, 15, 18, 47n89, 110, 186, 270 legal dogmatics 86n10, 88n27, 115, 120n25, 121n28, 127, 139n9, 211, 220–​222, 227n37, 255, 258, 268 legal evolution of society 194 legal experience 16, 32, 37, 39, 116, 120n17, 130, 131, 136, 140n19, 171, 173, 179, 180, 184, 186, 205n15, 234, 269 legal idealism 211 legal pluralism 30–​31, 33, 35, 49, 79, 82, 177, 181, 231; see also pluralism legal policy: as means of materializing ideal of love 58; need for 262n22; predetermination of goals 60; as psychological science 58; as revival of natural law 59; scientific legal policy, creation of 57–​58 legal psyche 156, 157, 213, 214, 216, 218, 233, 237, 238, 239 legal realism see realism, legal legal solipsism 40, 44n38, 48, 54, 231, 258 legal source 14, 102, 203, 222, 270; see also normative facts Legaré, Hugh 73, 75 Lenin see Ulyanov,Vladimir Ilyich Leontiev, Konstantin N. 11 Lévi-​Strauss, Claude 183–​184 Lévy-​Bruhl, Lucien 241n21 liberalism 2, 8, 9, 33, 41n9, 90n54 linguistic dogmatics see language policy linguistic prescriptivism see language policy Llewellyn, Karl N. 73, 87n20, 88n28 love, ideal of: as binding on lawmakers 43n28; Christian anti-​legalist version 10–​11; Christianity as transitional toward 237, 238, 239; creative altruism 18; and feedback of law on human character 56; law ultimately rendered redundant by 42n18, 79, 150, 160, 240n6; legal policy as means of working

toward 58, 258; as natural law 6; as Russian 4; Interwar disillusionment with 5; proactive love 11, 16, 18; religious overtones 230; utilitarianism vs. 230 Malinowski, Bronisław 143n48, 173, 187n1 Marx, Karl 9, 13, 18, 31, 97, 98, 106, 176, 237, 264 Marxism: class law 18; fundamentalism of, criticized by P 97, 117; growth in Russia 8; and legal policy 59; liberal rejection of 8; on origins of law 56; P’s theories, attempts to assimilate to 48; psychologism, rejected by 13; and religion 237–​238, 239 mathematics 73, 80, 86n10, 87n16, 222, 265 Maturana, Humberto 201 Meinong, Alexius 101 Mill, John Stuart 239n3 motivation, normative vs. teleological 49, 118, 122n48, 231, 233, 257, 261n16, 261n18, 276 mystic-​authoritativeness, of ethical emotions 147, 148, 161n8, 231, 240n11, 261n16, 271 natural law 6, 58–​59, 226n33, 234, 268–​269 neo-​Thomism 62n3 Nicholas II 8, 9, 26 nihilism, naïve 12, 99, 122n37, 225n9 noema, deontic see norms noesis, deontic see norms nominalism see sociology, realism vs. nominalism non-​contradiction, principle of 221, 269 normative experience: appulsion and repulsion 131, 132, 135, 136, 142n39, 142n40, 147–​148, 152, 218, 231; ethical emotions 147–​148, see also jural emotions; hypostatization 113, 148, 153, 154, 155, 162n26, 164n42, 266 normative facts: a posteriori conception of 129; bindingness subjective 34–​35, 40; collectivist conception of, Gurvitch’s 36–​39; distinguishing between intuitive and positive law 36; ethical coordination explained by 35–​36; external existence of, unnecessary for normative experience 130; heteronomy 34; immediate perception of vs. realistic representation of 188n11;

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Index  283

individualist conception of, P’s 34–​36, 129; linguistic vs. non-​linguistic 129; norm-​annihilating vs. norm-​establishing 140n19, 250, 260n7; normative experience potentially independent of 130; positive law built on 249, 250; reduction of law to 172–​173; symbolic nature of 188n10 normative sources 172, 272, 273; see also normative facts normativity, positive vs. intuitive 248–​252 norms: as deontic noemata 131–​133, 134–​135, 137; deontic vs. cognitive noesis of deontic noemata 136–​137; deontic propositions, not identifiable with 130–​131; as elusive concept 126; aesthetic vs. ethical norms 233, 255, 256, 261n16; exclusively psychical nature of 131–​132, 250, 251; implicit vs. explicit linguistic norms 250–​251; mapping referents of term 127; moral vs. legal norms 255; naïve-​realistic theories 128; non-​participant experience of 135–​136; normative vs. teleological motivation 49, 118, 122n48, 231, 233, 257, 261n16, 261n18; norm-​creating acts vs. normative experiences 127; norms of law vs. legislative expressions 128–​129; projections not essential to 133–​135, 141n36 Novgorodtsev, Pavel I. 3, 4, 6, 9, 35 Nuremberg trials 221 obligation: legal 16, 36, 53, 154, 170, 178, 102, 179, 180, 184, 185, 210, 235, 257; moral 179, 180, 235, 257, 271 official vs. unofficial law: actualization of official and unofficial law 179–​180; definition of 171; experience of law as state-​approved 178–​179; legal dimensions 171, 180–​181; and social conflict 176; usefulness of distinction 181, 187 Olivecrona, Karl 41n4, 50 Opałek, Kazimierz 41n3, 47–​48, 59, 239n2, 240n10 Ossowska, Maria 48, 61, 62, 166n62, 174, 175 Otto, Rudolf 115, 177, 229, 240n12 Parsons, Talcott 101, 115, 122n45, 122n46 Paul of Tarsus 58, 230 Pavlov, Ivan 7, 12, 17, 89n49, 170 Pashukanis, Evgeny B. 13, 17

Peczenik, Aleksander 41n3, 86n10, 120n25 Pekelis, Alexander 80–​81, 89n46 perception 34, 53, 54, 113, 135, 147, 148, 150, 166n61, 185, 188n11, 196, 200, 212, 218, 225n14, 231, 250, 274 person: juristic 115, 142n44, 214, 217; natural 142n44, 213, 218, 225 Petrażycka-​Tomicka, Jadwiga 23–​24, 26, 28, 89n39 Petrażycki, Leon: birth 24; childhood 24; Constitutional Democratic Party membership 3, 25–​26, 32, 239n5; Duma, election to 3, 16, 26, 28n15, 32; education 1–​2, 24–​25; followers of 17–​19, 47–​48; as gradualist liberal 6, 8, 17, 31, 40, 239n5; humanistic erudition and eclecticism 83; imprisonment 3, 26, 28n15; International Institute of Sociology, vice-​president of 5; lost sociological works 100–​101; as man of principle 5–​6; marriage 26; noble ancestry 23, 24; Poland, move to 4; Polish/​Russian/​Slavic identities of 4, 6; political activity in Poland 5, 26; political activity in Russia 2–​4, 25, 33; Pravo, editorship of 2, 26, 32; as socialist 41n9; suicide 5, 28, 40, 44n39; Supreme Court appointment 4, 33; as transnational intellectual 1; University of St. Petersburg, career at 2, 3–​4, 5, 25, 26, 193; University of Warsaw, career at 4 phenomenological sociology: communication, mutual understanding required by 198; experiences as content of communicative actions 198; everyday life, reality of 195; intersubjective world as object of interpretation 195–​196, 200, see also noema, deontic phenomenology 37, 43n30, 90n56, 101–​102, 118, 134, 135, 139n10, 141n31, 142n42, 143n46, 148, 162n20, 195, 198, 204n4, 229, 232, 240n12 phenomenon: ethical 110, 271, 266; legal 14, 34–​35, 269; moral 151, 152, 160, 271; normative 126, 127, 128, 130, 136, 137, 138n3, 140n16, 143n53, 147, 161n7, 273 Piaget, Jean 148, 162n19, 166n61, 166n63, 216, 241n21 planning see language policy pluralism: active love as termination of, in future unity 80, 82; broadness of P’s research agenda 80; colonial native law

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82–​83, 89n47; customary law 80, 82, 83; official law vs. intuitive law 79, 82; uniformity of official law framework, P’s insistence on 83, 86n10; see also legal pluralism Podgórecki, Adam: career of 48; as critical advocate for P’s theory of law 47, 48–​49; formalization principle 52, 63n16; functionality, as defining characteristic of law 52–​53; imperative-​ attributive structure of law 50; influence of P on 49–​50, 61; legal policy 57, 59–​60; official vs. unofficial law 171; parallel schema, law as 54; sociological inclinations 54, 55; sociotechnics 49, 59–​60, 64n29; tetradic concept of law 53; on Weber and P 114 Poland: coup d’état (1926) 5; independence 5; legal systems in nationalized industries 180–​181; nationalist authoritarianism 5; partitioning of 23; uprising (1863) 7, 24 political processes, reduction of law to 172, 173 Popper, Karl 31, 121n30 position 103, 104, 119n11, 141n28, 274 (see also judgment) positive vs. intuitive law: definition of 171, 184–​185, 249; hub of socio-​legal life, intuitive law as 185–​186; legal consciousness, levels of 185; Marxist version of intuitive law 18; and normative facts 173; official vs. intuitive law 15; parallel with positive vs. intuitive linguistic convictions 259; potential vs. manifest states 186; and symbolism 184, 186–​187 positivism 2, 4, 14, 31, 49, 62, 63n10, 71, 97, 102, 210, 211, 230, 234, 238, 240n17 Pospíšil, Leopold 176–​177, 180 Pound, Roscoe N. 2, 17, 30, 59, 72, 85n6, 90n56, 101 power actions vs. legal actions 180 pragmatism 14, 258 Prague linguistic school , 253, 250, 254 principle of adequacy see adequacy, principle of principle of excluded middle see excluded middle, principle of principle of non-​contradiction see non-​ contradiction, principle of projection 13, 15, 34, 41n8, 43n21, 51, 132, 133, 135, 141n36, 238, 250, 275 prophets 35, 59, 249, 272

Proudhon, Pierre-​Joseph 31 psychical experiences, reduction of law to 173–​174 psychoanalysis: entitlement, sense of 156–​158, 165n54; identification with the aggressor 152; and introspection 19, 77; not mentioned by P 161n9; pathological phenomena 155; rationalization 165n51; redirection of drives 153; socialized aggression 153; superego 166n60 psychological contagion 39, 55, 107 psychology: legal policy as psychological science 58; nineteenth-​century development of 12; psychical experiences not directly observable 179, 196–​197; rigorous research methods, adoption of 170 psychosocial phenomenon, law as 201 Rabel, Ernst 81 realism: legal 73, 74, 87n19, 87n20, 87n24, 211; naïve 113–​114; in sociology 113 realist jurisprudence 14, 41n3, 41n4, 74, 85n8 Rechtsstaat 2, 31, 81, 89n44 reductionism: normative facts, reduction of law to 172–​173; Petrażycki not reductionist 15; political processes, reduction of law to 172, 173; psychical experiences, reduction of law to 173–​174; social interactions, reduction of law to 173; sociology, reductionism of 13, 98 Reisner, Mikhail A. 18, 44n38, 193 religion: Christianity, relevance of moral aspects in 237; interdivine law 213–​214, 215–​216; interhuman legal motivation reinforced by 235, 238; Islam 236, 238; Judaism, relevance of legal aspects in 237; legal norms, authority of, greater than deities 234; legal-​religious psyche 235–​236, 237, 238, 239, 242n26; and love, ideal of 237, 239; monotheism 236; mystic-​authoritativeness 231, 233–​234, 240n11, 261n16; narrow psychological definition of 232, 238; overlap with law 231, 238; phenomenology of 229, 232, 240n12; polytheism 236; psychical diversity of 232; rights and duties of deities 233, 235, 236–​237; social aspect of 232–​233

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representation: fantastic 114, 140n21, 218, 225n10, 266; realistic 140n21, 218, 225n10, 275 revolutions, Russian see Russia right, sense of 161n14; see also entitlement, sense of rights: animal 83, 107, 120n17, 200, 205n15; authority rights 202; compound rights 202; of deities 233, 235, 236–​237; education in as law’s function 16, 17, 79, 82; emergence of individual agency from 16; freedom of conscience 80; human rights 10, 53, 61, 221, 226n34, 230; interest as essence of 121n28; passive identification with rights-​holders 152; rights to another’s abstentions 154; rights to another’s actions 154; rights to one’s own actions 154; rights to reciprocation 154; women’s 26, 63, 83 Roman law 25, 74, 75, 78, 87n21, 88n31, 240n13, 262n22 Ross, Alf 41n1, 213, 224n3 Rousseau, Jean-​Jacques 32, 39, 41n8, 43n35, 234 Russell, Bertrand 119n4 Russia: autocratic rule of Nicholas II 8, 9, 26; Constitutional Democratic Party (KaDets) 3, 6, 8, 9, 10, 25–​26, 27, 32, 239n5; Duma, first 3, 9, 25–​26; Emancipation Act (1861) 7; famine (1891) 8; reactionary period under Alexander III 7; revolution (1905) 2, 9, 25; revolution (February 1917) 4, 10, 26, 33; revolution (October 1917) 4, 10; Soviet legal system 18; tsarist autocracy 2, 3–​4 Saint-​Simon, Henri de 31 Sapir-​Whorf hypothesis 260n1 Scheler, Max 229 Schütz, Alfred 20, 118, 142n42, 195–​196, 197, 199, 204n4, 205n10 science: objective-​cognitive see science, theoretical; practical 49, 60, 105–​106, 121n28, 276; subjective-​relational see science, practical; theoretical 49, 105–​106, 274, 277 secularization of knowledge 11, 12 sensation 113, 122n33, 274, 275, 276 sense of entitlement see entitlement, sense of Slavic conception of law 4 Slavic languages, standardization of: customs 252–​253; diglossia 257;

judgments by dispute-​settling institutions 254; models 253, 254; opinions of grammarians 253; sacred texts 254; Serbo-​Croat, failed standardization of 254–​255; Slovak in Serbia 256–​257; Sorbian in Germany 256–​257 social Darwinism 97–​98, 109 social progress, idea of 11, 13, 17 sociolinguistics: attitudes of speakers, investigation of 259; corpus linguistics 252, 258; critical 247; definition of 246; dialectic relationship between linguistic and other norms 251; language varieties 260n3; linguistic norms 250–​251; unconscious wisdom of language in P 260n1, 262n22; see also language policy; Slavic languages, standardization of sociology: absolute individuality, principle of 98–​99; Anglo-​American vs. European conceptions of 84; determinism of 98, 99; as evolutionary theory of social development 108–​109, 241n20; fundamentalism of 97–​98, 104; increasing complexity of net of causal phenomena, principle of 99; individualist 11–​12, 114, 115–​116; inductive method inappropriate to 111–​112; infinite complexity of net of causal connections, principle of 98–​99; of language see sociolinguistics; law, sociology of 109–​110; as most general social science 107–​108, 112; motivation, analysis of 117–​118; natural science methods, inappropriateness of 99, 100, 101; realism vs. nominalism in 113–​114, 116; scientific rigor, lack of, according to P 97; solidarity as key issue of 13; subjectivist 12; as theoretical not practical science 106; see also phenomenological sociology; sociolinguistics; unity of scientific knowledge sociotechnics 49, 59, 60, 64n29 Solovyov,Vladimir S. 11, 43n29, 80, 83, 89n42, 89n44, 89n51 Sorokin, Pitirim A. 4, 18, 19, 27, 41n6, 54, 193 source, normative see normative sources Spiegelberg, Herbert 138n4 Stalin see dze Jughashvili, Ioseb Besarionis Stammler, Rudolf 6, 240n6

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standardization, linguistic see language policy state: psychological concept of 214; sociological concept of 108, 214 statist theories of law, rejection of 13, 15, 30, 31, 38, 40, 49, 50–​51, 71, 82, 172, 177–​178, 230, 238 status planning see language policy statutory law 15, 35, 42n19, 56, 57, 127, 129, 186, 250, 256 statutory reception of customary law 57 structuralism 247, 248 subjectivism 3, 5, 12, 13, 16, 34–​35, 199, 240n18 Swiss Civil Code 81–​82, 139n10, 186 St Petersburg school of legal philosophy 193 Tamanaha, Brian 63n14 Tarde, Gabriel 13, 39, 98 theorem of n \+​1 theories 103, 105, 107, 119n10, 276–​277 theoretical vs. practical scientific attitudes 49; see also science Timasheff, Nicholas S. 18–​19, 33, 41n6, 42n13, 54, 77, 88n30, 89n51, 193 Tolstoy, Leo N. 9, 10, 11, 17, 78, 79, 88n35, 88n38, 89n42 Ulyanov,Vladimir Ilyich 3, 8, 10, 42n17 unifying tendencies 79, 249, 277; see also language policy, standardization United Nations (UN) 212, 223 unity of scientific knowledge 102–​103, 241n20; and adequacy, principle of

103–​105, 106; theorem of n \+​ 1 theories 105, 107; theoretical vs. practical sciences 105–​106 utilitarianism 230 validity 38, 41n1, 127, 175, 196, 260n8 Varela, Francisco Javier 201 Vyborg manifesto 3, 5–​6, 26, 32 Walicki, Andrzej 25, 32, 35, 63, 71, 75, 79, 80, 85n4, 204n1, 204n5, 114 Weber, Max: anthropomorphism of legal entities 217; individualist sociology 115–​116; international law 224n4; motivation, analysis of 117–​118; nominalist sociology 116; observational vs. explanatory understanding 115; rationalization of law 186; reality of everyday life 195; religion 229; Russian constitutionalism, sceptical of 9; states, people’s representation of 225n11, 225n17; value-​free science 49, 115; value-​rational vs. instrumentally rational actions 261n18; Verstehen method 114 Weinberger, Ota 135, 136–​137, 142n44, 142n45, 143n46, 143n49 Wissenschaftslehre 102–​103 Witte, Sergei Y. 2, 25 Wittgenstein, Ludwig 114, 251 World Trade Organization 223 Wróblewski, Jerzy 47, 48, 58, 59, 61n2, 63n10, 64n28 Wundt, Wilhelm 2

286