Law and Morality

Leon Petrazycki, A. Javier Trevino

• Publisher: Routledge
• Year: 2017
• Print ISBN: 9781138526921
• eBook ISBN: 9781351509619
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

In analyzing the socio-psychic nature and operations of intuitive legal rules, Petrazycki formulates a theory of law around five conceptual themes: anti-formalism, imperative-attributive legal relationships, law's functional control, law's subjective reality and morality. Petrazycki presents the two ways by which law coordinates and regulates social conduct as through its distributive and organizing functions. Law and Morality has a basic objective: to analyze interrelations between positive and intuitive law. Petrazycki's socio-psychic orientation toward law is behavioral as well as thoughtful. He finds the most suitable methods for obtaining knowledge about legal experiences to be internal and external observation. His technique of introspection is similar to Max Weber's conceptual method. Petrazycki distinguishes between two kinds of interpretive understanding. External observation involves deriving the meaning of an act or symbolic expression from immediate observation without reference to any broader context, and internal observation involves placing the particular act in a broader context of meaning involving facts that cannot be derived from a particular act or expression. Petrazycki's socio-legal ideas remain relevant in today's society. His arguments concerning the global expansion of human love have an attraction for those working towards a better world. In the context of positive psychology and the growing happiness industry, Petrazycki's ideas will compel legal scholars to consider his arguments. Petrazycki's work stands out for the scientific ambitions and systematic nature of his thought as well as the influence of his work on later scholars in the sociology of law.

CHAPTER I
The Premises of a Scientific Theory of Law and Morality

SECTION I. The Prerequisites of a Scientific Methodology for Jurisprudence

The great philosopher Kant poked fun at the jurisprudence of his time as still not knowing how to define law: “jurists are still searching for a definition of their concept of law,” he remarked ironically. He himself worked — but without success — to find a solution of the problem, and since his time many outstanding thinkers, philosophers, and jurists have worked in the same field of investigation. Even now, however, “jurists are still seeking a definition for their concept of law.” The fact that the enormous amount of labor expended in this direction, and the great number of more or less ingenious and profound attempts to define the essential nature of law that have accumulated in the course of time, have thus far failed has even given rise to doubt, recently, that the problem can actually be solved.

It would, however, be utterly wrong to suppose that a science of law can be constructed, and the various problems related thereto scientifically solved, if the questions: what is law? what phenomena are to be deemed legal phenomena? and how are legal phenomena to be distinguished from other phenomena? are left unanswered. Above all, the establishment of a scientific concept of law is a condition precedent to the scientific formation of all the other concepts of jurisprudence. These concepts may be divided into two categories.

(1) To the first category belong concepts of various species, subspecies, and further subdivisions of law: customary law, statutory law, public, international, constitutional, criminal, and civil law, and so forth ; concepts of the law of obligations, domestic relations, and inheritance as varieties of civil law, and the like.

The concept of a species is the concept of the genus whereof the species is a component part plus the differentia of that species; consequently a species concept postulates, first of all, the presence of the appropriate (and indispensable) genus concept. Thus, the concept “international law” is the concept of law plus the differentia specifica distinguishing international law from other species of law; and there can be no scientific concept of international law so long as there is no scientific concept of law.

The concept of a subspecies, or variety, of any given species (such as the concept of a law of obligations, or of domestic relations, as species of civil law) presupposes a scientific concept of the species; and since, prior to the establishment of a scientific concept of the genus “law,” there can be no scientific concepts of species of law, so there cannot in such case be proper concepts of subspecies of law.

(2) The second category of legal concepts consists of those which embrace not law or its varieties, but other objects, in the sense that appropriate designations of these objects as within or outside a given concept depend on their definite relationship to the law. Such, for example, is the concept of a violation of law; violations of law are not law, or varieties of law: they are phenomena absolutely distinct from law. The designation of certain phenomena as violations of law depends, however, upon the relationship between them and law, upon their violating the law and upon the law prohibiting them. Concepts of a legal act — of a will or international compact, or of criminal conduct — connote certain human actions from the point of view that law — or, specifically, civil law, international law, or criminal law — associate with them definite consequences.

We may call such concepts relatively-legal concepts, to distinguish them from the supreme concept of law and concepts (subordinate thereto) of various species and varieties of law, which may be called absolutely-legal concepts.

Every relatively-juridic concept necessarily comprises, as a component part, the concept of a certain relationship of certain objects to law, or to some branch of law; consequently, every relatively-legal concept must inevitably contain one of the absolutely-legal concepts as an element: either the supreme concept of law (as in the concept: violation of law, legal transaction, and the like), or the concept of one of the species of law (such as criminal conduct) or the concept of some further subdivision of law (“binding contract,” in the sense of obligatory civil law, and the like).

With reference to all absolutely-legal concepts, we have already shown that they cannot be scientific if there is no scientific concept of law. Hence it follows that no relatively-legal concepts can be admitted as proper scientific concepts until a scientific concept of law has been created. If our division of legal concepts is acknowledged to be complete and exhaustive, the conclusion must then be that not a single legal concept — not a single one of a multitude of ideas referring to the province of jurisprudence — can be scientific until a scientific concept of law has been created.

By forming general concepts, science attains orientation in the world of phenomena and converts the chaotic and boundless diversity of utterly heterogeneous and concrete objects and events into an ordered system, consisting of categories, genera, species, and varieties. Proper systematization is thus accomplished. Human knowledge is reduced to order. The proper arrangement and bearing of knowledge within the individual sciences is achieved, as well as the arrangement inter se of the different disciplines as branches and heads of a single Science: a single system of human knowledge.

Our purpose has been to make clear the importance of the scientific concept of law to the end that an entire system of subordinate concepts may properly be formed within the boundaries of jurisprudence. However, law is itself a species among the species and genera of world phenomena; while jurisprudence is one of the headings of Science in general.

From the viewpoint of Science in general and general scientific education, as well as from that of jurisprudence and specifically legal education, it is essential to know the corresponding relationships — in particular, to get clearly in mind the higher and more general class of phenomena to which law is related, the other species within the same genus, the sciences to which jurisprudence stands in logical proximity (and the boundaries between them). However, only on the basis of a scientific solution of the problem as to the concept of law can a definite scientific answer to all these and allied questions be given.

To an understanding of the significance of the scientific concept of law, and of scientific concepts in general, certain considerations are essential.

1. Proper concepts of different classes of objects are most important not only for orientation in the world of phenomena and proper systematization of the knowledge gained, but also for the very acquisition of knowledge. A scientifically-methodological and systematic study of a certain category of phenomena presupposes the presence of a scientific concept of the corresponding class of phenomena.

The scientific formulation of propositions as to a certain class of phenomena on the basis of the corresponding facts presupposes, above all, the selection and examination of facts related to the class under study, and the elimination of facts extraneous thereto. Upon the correctness with which the data are chosen depends the accuracy of the inferences therefrom. If these are to be trustworthy, all confusion and misunderstanding in choosing the data must be avoided: thus, in studying morality, a phenomenon bearing in fact no relation thereto must not have been so taken as relating to morality, since no inferences as to morality can properly be based thereon ; but so long as there is no scientific concept of the corresponding class of phenomena there is neither any criterion for the proper choice and selection of factual material nor any guaranty against confusion; and until there is a scientific concept of law there can be no scientific acquisition of any truths whatsoever concerning law — still less is it possible to formulate a system of these truths which shall deserve the name of science.

If the nature of a certain category of phenomena is correctly defined, science cannot merely gain knowledge about these objects by studying the appropriate concrete facts, but also — through use of the deductive method — reveal truths about them not yet acquired by observation of them. Knowing the basic property of the phenomena of a given class, science can explain deductively further characteristics of the given province of being (associated with this basic property) as natural or necessary consequences of the basic property, or even foresee facts that have, in general, not yet been noted, or may have escaped notice. However, this second possible source of scientific knowledge is closed to legal science so long as there is no concept of law: no knowledge of the nature of the phenomena to be studied by that science.

2. Even if the necessity of observing scientific methods for the acquisition of scientific propositions be not conceded, and assertions without such foundation be accepted as scientific, propositions as to this or that category of objects, lacking a definite concept of this class of objects, must still be unscientific: they would be judgments formed in ignorance of what specifically was the point at issue and the greater the confidence with which such assertions (concerning a subject unknown) were expressed, the more monstrous they would be from the standpoint of science. In the same way, all judgments about law are — so long as there is no definite concept of law — judgments and assertions about an object unknown and indefinite.

The foregoing demonstrates how cardinal are the misunderstandings at the foundation of the view (explicit or implicit) that scientific investigations into the more particular questions of legal science — without spending time to decide: “what is law” — can, and even should, be pursued.

The problem of the concept of law is by no means one of a multitude of problems of jurisprudence. It is, purely and simply, the problem of the science of law in general: a fundamental problem upon whose solution depends the very possibility of legal science, as distinguished from a collection of opinions, assertions, and propositions which cannot pretend to rank as scientific in respect either of their origin or of their content. On the other hand, statements, or even confident assertions, that the problem is beyond solution since attempts to solve it hitherto have failed are equally without scientific foundation.¹²

A sound and scientifically correct hypothesis is entirely different: it must be assumed that the methods hitherto applied to the study of legal phenomena, and to the formation of appropriate concepts, have failed, and those methods must be reexamined critically and in detail, and appropriate and scientific methods — which can bring us to the goal — worked out.

This view is sustained by the condition of the other basic concepts and problems of contemporary legal science — a condition just as cheerless as that of the problem of legal science, and entailing consequences just as negative within their spheres of action as were pointed out supra with reference to the failure to ascertain the nature of the law in general.

The “search for a definition” (and the successive failures of attempts to find one) is a phenomenon repeated as regards other general (absolutely-legal and relatively-legal) concepts: until the problem of the supreme concept — the concept of law as such — has been solved there cannot be proper scientific concepts. However — precisely because there is no supreme scientific concept — the defects of subordinate legal concepts ordinarily escape attention, and the term, “law” or some similarly indistinct notion operates as if it were a scientific concept of law, while the formation of subordinate concepts proceeds as if “law” were a known and scientifically defined quantity. Nonetheless, there are countless difficulties and dissensions with regard to these concepts, extending — as time goes on — even to the general concepts which theretofore aroused no doubt and seemed finally established and completely satisfactory.

This scientific ailment is noted in a particularly sharp and striking form in the sphere of the general theory of law, the so-called Allgemeine Rechtslehre, but there is likewise utter chaos in the conceptual schemes of particular legal disciplines — of the sciences of private and public law, and especially of constitutional law.

In general, the amazingly deplorable and chaotic condition of legal science is beyond question — and particularly the failure of innumerable attempts to solve its fundamental and elementary problems — and this makes it of primary and insistent importance to proceed with the task of verifying critically the means and methods hitherto employed to gain knowledge of law and to build a consciously-scientific epistemology and methodology thereof. Even if it were not for the specific symptoms supra of the failure in fact of the ordinary means and methods of investigation, this task would still loom as one of the basic and most important confronting legal science: the fundamental postulate of every sort of scientific knowledge is a consciously-critical application of scientific means and methods of cognition, scientifically verified and proven.

The means and methods of solving problems of legal science that were formerly — and are still being — employed are based on tradition and habit, and not on the propositions of the appropriate consciously-scientific methodology: no such methodology exists, for the time being, in the science either of law or of morality.

SECTION 2. The Sphere Where Legal Phenomena and Their Elements Are Found

The fundamental method of studying and gaining knowledge of objects and of phenomena is observation. In studying the objects and phenomena of the physical and material world, observation consists in perception with the aid of “the external senses” (sight, hearing, smell, taste, and touch), and is termed external observation. In studying phenomena of the spiritual world — psychic phenomena — observation consists in internal perception of what is taking place within one’s own mind,² and is termed internal observation: self-observation or introspection.

In certain spheres of cognition — as where extremely small objects, imperceptible to ordinary vision, or extremely remote objects, are under study — observation must, in order to be successful, employ special technical means and methods: the microscope and the telescope are great technical discoveries which broadened the province of human observation and cognition very subtantially. As will be explained elsewhere, there are also certain categories of psychic phenomena — including essential elements of moral and legal phenomena — which cannot, under ordinary conditions, be perceived by inward observation, so that here, also, special means and methods for achieving successful observation and cognition must be worked out and applied.

There are fields of cognition, where the application of observation and the success of cognition are obstructed by misunderstanding as to the actual sphere where the corresponding real phenomena are. We shall deal infra with a special class of psychic processes which have the peculiar property that external objects seem (to persons experiencing these processes) to possess particular attributes (not actually existent) or to exist in the external world (where they do not so exist at all).

In the corresponding fields of cognition, we must avoid the error of accepting as real that which seems to exist in a world external to the person experiencing such processes, and keep in mind that the corresponding real phenomena are to be found in the mind — and only in the mind — of that person. It would be naive to suppose that an epithet “nice” or “dear” as applied to another connotes any peculiar qualities of the person to whom such attributes are ascribed: however closely we study that person — examining him from head to foot, and seeking otherwise to find something corresponding to the epithet “dear” — our search will fail, and the meaning of the word “dear” will remain hidden from us. Only when we turn to a study of the psychic experiences of the persons using these terms can that meaning be explained.

Misunderstandings of this sort are possible — and in fact play a great part — in the sphere of phenomena of moral life. The statement that so-and-so is under such-and-such a moral obligation ordinarily presupposes, as the expression itself shows, that “moral obligation” is a real phenomenon, found where the man is found to whom that obligation is ascribed. In reality, however, the real phenomenon corresponding to the expression “moral obligation” is found in an entirely different sphere: in the mind of him who finds that another is under a moral obligation.

This must be kept in mind also in the field of law and the study of law. Suppose we are concerned with this judgment: “Squire A has a right to obtain from lessee B, 5,000 rubles rent”; or “lessee B is bound to pay to Squire A the 5,000 rubles stipulated in the lease.” According to legal terminology, there is — as between A and B — the legal relationship of lessor-lessee. Here a legal phenomenon confronts us: Where is it? Where can it be found for purposes of study?

It would be a mistake to suppose that it is to be found somewhere in space between A and B, or that — if A and B are in a certain province — the legal phenomenon is somewhere in that province, or to suppose that the legal obligation ascribed to lessee B in the judgment aforesaid is something found in him, and that the right to obtain 5,000 rubles is something present — and to be found — in Squire A, in his hands, or in his spirit, or anywhere at all around or in him.

The scientific and critical answer to this question can and should be simply this: the legal phenomenon is in the mind of the third person C, who supposes that A has a right to receive — and that B is bound to pay — 5,000 rubles.

In precisely the same way, if a learned jurist experiences the judgmerit: “lessees are bound to pay lessors the agreed rent upon the expiration of the period of occupancy,” we have before us a legal phenomenon; and the learned jurist may take advantage of its presence to observe, study, and analyze it. He would, however, be acting under a misapprehension if he sought the corresponding legal phenomenon somewhere in space above or between people, in the “social milieu,” or the like: it occurs within himself — in his own mind — and only there.

Legal phenomena consist of unique psychic processes (to be further studied, analyzed, and defined infra) expressed, incidentally, in the unique form of ascribing to different beings (not only to people, but to beings of various other classes, conceived of in the mind), or to certain classes of such beings, “duties” and “rights”; so that these beings,...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Introduction To the Transaction Edition
• Introduction By Nicholas S. Timasheff
• Translator’s Note
• Comparative Table and Note on Omissions and Condensations
• Bibliography
• Chapter I The Premises of a Scientific Theory of Law and Morality
• Chapter II The Nature of Law and Morality
• Chapter III Properties and Tendencies of Law and Morality
• Chapter IV The Legal Norms
• Chapter V Legal Relationships
• Chapter VI Species of Law
• Chapter VII Public and Private Law
• Chapter VIII Law and Socio-Psychic Life
• Index