Emotions in law: psychological theory of law by Petrażycki (and Olivecrona)

Transcription

1 Emotions in law: psychological theory of law by Petrażycki (and Olivecrona) Dawid Bunikowski Doctor of Law, Postdoctoral Researcher, University of Eastern Finland Law School

2 Petrazycki Leon Petrażycki, the Polish scholar, (d. 1931), as first, created a psychological theory of law. His achievements are important in the context of "emotions in law". Made a "Copernican revolution" in the law science: he changed our thinking about law by recognizing law as a psychological phenomenon. His achievements and role are, however, relatively little known in the West, although many thoughts of this scientist outstripped the achievements of Western scientists (Pound etc.).

3 Petrazycki: theory According to the theory, law is an emotion. It is in one s mind. Every emotion has an influence on human behaviour. We feel a force in our mind, the force that is binding for us that we must do something. Such a law does not come from a state, but from other places and relations. Law cannot be found in legal acts or textbooks, says Petrażycki! See: L. Petrażycki, Wstęp do nauki prawa i moralności, edition by J. Lande, Warszawa 1959.The English version of his works is here: L. Petrazycki, Law and morality, Cambridge: Harvard University Press (translation by Hugh W. Dabb, introduction by N. S. Timasheff) 1955.

4 Petrazycki: emotions Law is not in a place or time (like in the air in such and such a county) while we talk about a legal relationship between two parties. Law is just in our minds. E.g. I know that I must do something because I have some duty and another has some right.

5 Petrazycki: law as emotions Law is imperative-attributive (emotion/s) then. We have still imaginations of our duties and rights in our minds. The two parties of a given contract also deal with such feelings. If A lends 500 to B, a legal relationship between them (the lender-the borrower) is not on the paper or in the air, but only in their minds!

6 Where s law? Optical illusion of the science of law [...] if legal phenomena are specific mental processes, therefore, there are not and can not be other methods of their study than the introspective method (ordinary and experimental), as an elementary and absolutely necessary measure to know the nature of legal phenomena. We have to watch out for error, which is based on something like real recognition for these items or characteristics whose existence in the external world is a people s illusion, the people surviving such processes, and we have to realize that relevant phenomena really exist in the psyche of the person who is experiencing this kind of deceptive process - only in the psyche of this person. If you begin to seek legal phenomenon somewhere in space over people or between them, in the "social environment" etc., it is wrong as in this case there is a legal phenomenon only "in your own mind - in your own psyche and nowhere beyond. The science do not see legal phenomena where they actually occur, but is still looking for them there where it is impossible to find them, i.e. in the world that is external to the entity (person) who survives legal phenomena.

7 Petrazycki: confusions? However, Petrażycki is confusing: in his papers on legal policy, he was not a fan of customary laws, but of a state law. State law?! Where emotional law then? He as a progressive liberal appreciating social rights and the progress of the humanity was thinking that customary law is the past of the story of the law. He expressed his opinion that written state law (like codifications) should shape consciences of people. State law is also a pressure.

8 Olivecrona This approach will be visible in the representative of the Uppsala school, Karl Olivecrona, and his theory. Law belongs to the world of time and space in this sense that law is a reality in human minds and is not about abstract ideas of general principles, rules (like it was in Kelsen s theory). What is important, however, in Petrażycki for us here is just his psychology of law. Olivecrona is from the Scandinavian realism. Didn t talk about similar things? See: K. Olivecrona, Law as Fact, London-Copenhagen 1939 (the 2 nd edition published in 1971), especially pp

9 Olivecrona The law must be necessary in some relationship with a phenomenon, the phenomenon in the world, and nothing can be in relation to the phenomena of this world without belonging to time and place. The legal compulsion, coercion law (binding force of the law) is binding as a reality and an idea in people's minds (an idea in human minds). There is nothing in the external world, which refers to this idea (of law enforcement) and corresponds with it in the human mind, there is no fact which is in the external world and corresponds to the notion of a binding legal coercion. Any researcher who claims scientifically, that the law is binding in a different sense than the current pressuring (and actually exerting pressure) on the population, must necessarily lead to absurdities and contradictions. Of course: the law is established by the legislature or otherwise - by ordinary people of flesh and blood. Our social life is based on real law (actual law), the law as a fact.

10 Olivecrona Binding force of the law Reality - an idea in human minds Actually exerting a pressure To exert an pressure on the members of the community People who are in position to lay down rules of law may actually influence the conduct of the members of the community It has, therefore, a place among the facts of the world of time and space Pure superstition: law is a fact but beyond the chain of reasons and effects This is something rationally impossible to explain how facts in the real world may imply effects in another world, the world of duties ought to be Imaginery law Actual law Organized force Real security Actual state of things in the community

11 Petrazycki and Olivecrona According to Petrażycki, law is a psychological fact a legal emotion in human mind, mentality. On the other hand, according to Olivecrona (and Scandinavian legal realism, the school of thought from Uppsala), law is a fact a human behaviour which is determined by the reality in the mind.

12 Petrazycki s attitude to law Petrazycki opposed to any concept of law, which stipulates that a law comes only from a state. His conception of the law is anti-positivist, antinaturalistic, anti-centric, psychological and realistic, and legal-pluralistic. It rejects the metaphysical or mystical threads of law. It creates a new basis of scientific study of the law on the grounds of emotional psychology (a more detailed discussion on the emotions requires a separate paper).

13 Olivecrona a attitude to law The theory is realistic, anti-naturalistic. It draws on the achievements of the psychology of law. Olivecrona as Petrazycki rejects metaphysical and mystical concepts of law. Olivecrona refers to positivism and normativism, but treats these theories critically (as Petrazycki). For Olivecrona, a law is a fact, not a norm.

14 Conclusions for us Our conclusion for lawyers, coming from Petrażycki s theory supported by Scandinavian realists considerations, is that law should be treated not only as a normative fact (legal texts) or axiological fact (values, principles) but also as a psychological fact (Petrażycki legal emotions) and a behavioural fact (Olivecrona human behaviour and reality in human mind). See more: Psychologiczne i realistyczne ujęcie prawa: Petrażycki a Olivecrona (Psychological and realistic concepts of law: Petrazycki and Olivecrona), Roczniki Naukowe WSB w Toruniu (Annual Journal of Torun School of Banking), 2011.

15 Thank you!