CC BY
22
1 u.o»ooew'
TEACHING OF LEON PETRAZYCKI ON NON-CONVENTIONAL FORMS OF LAW
DOI: http://dx.doi.org/10.14420/en.2015.4.2
Maxim Zabolotskikh, Deputy to the Town Legislative Council of Town of Muravlenko, Assistant Deputy to the Legislative Assembly of Yamal-Nenets Autonomous District, undergraduate of the Russian Presidential Academy of National Economy and Public Administration, e-mail: max_89_78@mail.ru.
Some aspects of the teaching of Leon Petrazycki on non-conventional forms of law, the need to study and possibility of using his scientific heritage are considered. In addition to these forms allocated by jurist, some other non-conventional forms of law, such as: the telephone, monetary, virtual, tactile, loud, as well as and the right of the strongest, the first and others are introduced. The conclusion is made that these non-conventional forms of law, like the ones that were considered by Leon Petrazycki, require modern studying and understanding from jurists.
Leon Petrazycki, psychological theory of law, non-conventional forms of law, types of positive law, legal custom, law of the gods, judicial practice.
Non-conventional forms of law have a significant impact on the development of the legal system of the state and society, they are prevalent in finding alternative ways of resolving social contradictions and the creation of an «ideal» legislation. However, their study in contemporary jurisprudence is neglected. «Forms of law described in the pre-revolutionary works, were much more diverse and deeper than modern ones. Their system appeared as a complex entity having reciprocal links between the elements. Modern jurisprudence in this matter is much poorer»1.
A review of the scientific heritage of one of the eminent scholars of the early 20th century, who expanded the scope of the modern understanding of the law and created a psychological theory of law, can serve as one of the proofs of this thesis. It is Lev losifovich Petrazycki. (Leon Petrazycki). He was born in 1867
Abstract.
Keywords:
1 Boshno S.V. Doctrinal and other non-conventional forms of law // Zhurnal rossiyskogo prava. 2003. № 1. P. 83.
into the Polish gentry of the Vitebsk Governorate. After graduating from gymnasium, Petrazycki studied at the Faculty of Medicine, and after the second year transferred to the Faculty of Law of Kiev University. The unique combination of medical and humanitarian knowledge of Petrazycki, undoubtedly, influenced the formation of his theoretical views in the field of jurisprudence. Leon Petrazycki from his young age was distinguished by outstanding abilities. Thus, while being a law student, in 1888 he translated Julius Baron's «Pandects» so professionally that under the title «System of Roman Civil Law» the book became a textbook for several generations of law students.
Upon graduation from Kiev University, Leon Petrazycki continued his studies at the Department of Roman law in Berlin. His works published in 18921895 years in German and having made a significant contribution into the teaching on the Roman law became a scientific outcome of his education in Germany. One of them, «The Doctrine on Income» was later reworked, and published by the author in Russia, in the Russian language, as the «Introduction to the Science of Law Policy». Leon Petrazycki's monographs caused many comments in the Russian and foreign press, including from the coryphaeus of the Russian civil law, D.D. Grimm and G.F. Shershenevich1.
After returning to Russia as a famous young scholar, Leon Petrazycki taught at Kiev University and worked on issues of the general theory of law. In 1986 he defended his thesis «The division of Fundus Dotalis on Roman law», and then his doctoral thesis on «The rights of bona fide owner of income from the point of dogma and policy of the civil law». Leon Petrazycki at the age of 30 became a professor, and headed (till 1918) a Faculty of Encyclopedia and the Philosophy of Law at the University of St. Petersburg. At the same time, he put forward the idea of necessity of creation of law policy science, which should be based on the original model of the impact on the behavior of individuals using the mechanisms related to psychology. It is while working in St. Petersburg, Leon Petrazycki carries out synthesis of the theory of law with psychology, and publishes such famous works as: «The Common law and national spirit», «Essays on the philosophy of law», «Introduction to the study of law and morality», «Fundamentals of emotional psychology», «To the issue of the social ideal and the revival of natural law», and one of the most famous - «The theory of law and state in connection with the theory of morals».
Along with the scientific activity, Petrazycki is actively engaged in political one. As a member of the Central Committee of the Constitutional Democratic Party (Cadets), he was elected a deputy to the first State Duma, and actively participated in legislative activities (laws on land reform, the rights of the individual, national and women's equality). Being in the midst of political events in Russia at that time, Petrazycki participated in the signing of the famous Vyborg Manifesto caused by the dissolution of the State Duma in 1906, which called on Rus-
1 Reviews of these jurists on the works of Leon Petrazycki see: Petrazycki L. The rights of bona fide owner to income from the point of dogma and policy of the civil law. Moscow: Status, 2002. P. 38-88.
sian citizens to protest against lawlessness through tax evasion and non-military service. Among other signatories, he was sentenced to three months of imprisonment and deprived of political rights. However, this did not prevent him from returning to teach at St. Petersburg University and later to become the first elected dean of the Faculty of Law.
However, in 1921 the professor emigrated and went to work at Warsaw University, where especially for him there was established Department of Sociology. In Poland, the legal scholar was engaged exclusively in teaching, working on sociological problems. There were published his monographs: «Philosophical Essays. On the so-called critical method and metaphysics, and practical philosophy of Kant», «New foundations of logic and classification of sciences». In his later years Leon Petrazycki faced with red tape publishing, he did not publish his works, though, and continued to work.
The crisis of the liberal sense of justice at that time, the establishment of communist and fascist dictatorships in a number of countries in Europe led Petrazycki to disappointment. Perhaps that was why the general course of historical events and personal mood of deep pessimism had led to the fact that in the age of 64 Petrazycki committed suicide. After his death, the widow of the scholar kept the remaining manuscripts and notes, most of which were destroyed during the Second World War and remained unpublished. «But what he had created was enough not to lose the attention of the world jurisprudence»1.
As we can see from the biography, there were three significant periods of life in the life of the scholar: Berlin, St. Petersburg and Warsaw. In light of the theme of this article, the St. Petersburg period of scientific activity of Petrazycki is the most fruitful one.
Continuing to develop his scientific program, in 1899 Leon Petrazycki writes a series of articles under the general title of the section «Customary Law»2, where he considers customary law as an expression of the unconscious, intuitive social adjustment of the legal psyche and gives precedence over to the legal custom of the conscious policy of law. The scholar formulates a thesis that the law regulates and influences the behavior of people through the psychological influence. Petrazycki sees in the «customary law» not the product of blind forces or the product of a conscious calculation, but a product, unconsciously formed, of the collective national experience; instinctive folk wisdom, or even genetic memory is included in it. Speaking about the customary law, on the folk customs, Petrazycki takes as its basis not those legal practices that are peculiar to the low level of mental and moral development of the people: slain elders, widow burning, bloody revenge, the right of first wedding night against the serfs, etc. Realizing that some parts of the population differ in their customs and general cultural level
1 Mashkovich K.V. Sense of justice and morality in the psychological theory of the law of L.I. Petrazycki // Istoriya gosudarstva i prava. 2007. № 12. P. 37.
2 Petrazycki L.I. Theory and policy of law: selected works // Scientific; ed. E.V. Timoshina. Sankt Petersburg: Law book, 2010. P. 187-244.
from others, the scholar puts the historic task of the law in familiarizing the lower classes to the perfect cultural values, that distinguish them from the upper classes.
«Essays of the Philosophy of Law» (1900) represent the first sketches of the psychological theory of law developed by the scholar afterwards. Petrazycki considers own definition of powers as a kind of psychological fact, certified by introspection1. In «Essays of the Philosophy of Law», the scholar conducts a review and critique of contemporary theories of law, whereas he indicates both the ineffectiveness of the positivist jurisprudence, and the narrowness of the different areas of the school of natural law and proposes to consider a law as a broader synthesized concept.
In a work «Introduction and study of law and morality. Basics of emotional psychology» (1905) the scholar complements a requirement of the synthetic construction of the legal theory with the principle of adequacy. Petrazycki called a right as a psychological factor of social life, which influences by excitement and suppress of motives to the different actions and abstinence, thereby strengthening and developing one inclinations and traits of human nature, as well as weakening and eradicating the other.
Dissertating on the term «law», the scholar differentiated two areas of its application - in the everyday vernacular and limited - professional language of experts and lawyers. Citing examples from everyday life, the scholar has noted that during any games there is a set of rules (rights) of their participants, which in terms of positive law is not a right. Petrazycki accompanied a proof of the existence in society of various forms of law, the nature of which is diverse by multiple instances.
Non-conventional forms of law are most widely studied in the monograph of Petrazycki «Theory of law and state in connection with the theory of morality» (1907). In the monograph, the scholar divides «law in the legal sense» into intuitive and positive, formal and informal2, and does a review as well on types of positive law non recognizable by a science contemporary to him.
Petrazycki notes that in the field of religious folk psyche delegating responsibilities to people and granting them the rights is attributed to different gods or God. A huge layer of social life and cultural education of the people are the rights of gods. Holy books and religious works having a huge impact on the entire nations are an example and have a clear description of law. The emergence of the jurisprudence goes back to the peoples and civilizations that lived long before the Roman jurisprudence. This ancient science and academic profession flourished on the basis of the corresponding law, which had a religious or sacred character.
1 Petrazycki L.I. Essays of the Philosophy of Law. Issue 1: Fundamentals of psychological theory of law. Overview and critique of contemporary views on the substance of the law. Sankt Petersburg: Tipo-grafiya; Y.N. Erlikha, 1900. P. 19.
2 Petrazycki L.I. Theory of law and state in connection with the theory of morality. Sankt Petersburg: Lan, 2000. P. 196.
In the fifth chapter, «On the types and varieties of the law» the scholar lists and analyzes the existing types of positive law.
The scholar described customary law as a type of the positive law, under which imperative-attributive experiences with representations of a certain mass behavior as normative fact take place in the psyche of people. Taken into account that such evidence exists in the form of customs of ancestors, the old traditions and modern standard customs, the scholar divides them into two types: old customs and new customs (novoobraznoe) law1.
Considering the jurisprudence as a type of law, Petrazycki relies on the fact that jurisprudence sometimes gets in the psychology of people a value of the normative fact. Thus, in countries of the Anglo-Saxon legal system, vast areas of the official law do not have legislative regulation, but instead of it, the positive law plays a decisive role referring to the relevant judicial decisions.
The right to certain prejudice, or the existence of several similar in essence and content of judicial decisions, also gets in the psychology of judges and other participants of the process, a value of the normative facts.
Another type of positive law the scholar calls judicial right. Consideration and settlement of disputes between the parties by the official court cause a kind of metamorphosis in legal psychology, «and, namely, it eliminates and deprives the value of the old various in content legal opinions ... and replaces them with a third legal opinion with reference to that that court or judge have decided so»2, except for some special cases.
The book law arises, when the collections of legal sayings compiled by someone get normative value in a legal life. There are plenty of historical examples of the book law: the Talmud, «Sachsenspiegel», collections of the Mohammedan law and various Christian churches. Sometimes the official collections, compiled for one place, get the standard value for other locations, provinces, countries, and in fact, without any legal sanctions are built into normative facts.
The right to opinions adopted in science was not rare in the history of law. Opinions of science, scientific jurisprudence received value of normative facts as well as in the domestic and international legal life. In addition, Petrazycki notes that the doctrine of individual lawyers or their groups sometimes get in the legal life a value of the legal facts, that is, he allocates the right to doctrine of individual lawyers or their groups. References to great lawyers or famous law schools, and not only to modern, but often to the ancient ones, were used in the preparation of new regulatory compilations or in making decisions.
The right to legal expertise occurs when there is an address to a group of scientists and authoritative public face for expertise in order to make solutions on complex and difficult legal issues. «Relevant legal phenomenon, legal experience, attributing legal obligations and rights with reference to both the normative fact
1 Petrazycki L.I. Theory of law and state in connection with the theory of morality. Sankt Petersburg: Lan, 2000. P. 438.
2 Ibid. P. 456.
and someone's expertise on a particular legal question concerning the present case, represent itself a special type of positive law»1. Legal expertise sometimes acquires such authority, that they become normative facts for decisions of not the cases for which they were originally requested, but others, similar to the original.
Right to sayings of religious and ethical authority. The role of normative facts and, moreover, much more authoritative than the state laws, customs and judicial practice, play sayings of different persons who have acquired the religious authority: Jesus Christ, Mohammed, the founders of religions, prophets, apostles, saints, church fathers, etc. For example, in the Middle Ages, scientists-legal scholars referred to the opinion of some saint, manifested Scripture as the source of law, and this opinion had greater legal force than the rules of law in force.
The right to religious and authoritative examples, patterns of behavior can become a legally binding on the grounds, that the deity itself or some religious authority did so in a similar case. Such well-known rule of conduct becomes a legal fact, which is referred to as a rule of conduct or rule of law.
Contract law is a special type of positive law under which the contract is concluded between the parties, generating legal relations. Several ancient philosophers admitted an agreement as an independent source of law2. An example includes international agreements, which are a source of international law.
The right to unilateral promises may become a normative fact, if someone promises to perform something in the respective known cases. For example, promises of the president given by him in a public statement, receive in legal psychology the role of the normative facts, which are then referred to by citizens to make grounds for arisen rights corresponding to the statement of the president.
The right to programs, messages about future actions, the program right.
Sometimes the legal psychology erects into normative facts simple messages of known persons about their future actions or regulations for future activities. For example, government or party programs in political life of the country can play a role of normative facts which are referred to, and when they are violated protests are voiced.
Right referring to the recognition of the obliged party, recognized right. Recognition is an independent normative fact, after which the previously baseless claims are converted into legitimate, based on the act of recognition as a special normative fact.
Leon Petrazycki calls the need for unification of legal relations through the development of a positive template for actions that took place earlier in similar cases as case law. Thus, the scholar separates this type of the law from judicial or judiciary because, in his opinion, the case law is based on appropriate actions, instead of on normative acts or decisions of courts.
1 Petrazycki L.I. Theory of law and state in connection with the theory of morality. Sankt Petersburg: Lan, 2000.P. 467.
2 Ibid. P. 472.
The right to legal sayings, proverbs - is a special type of positive law, referring to as the normative fact on legal proverbs and sayings. This phenomenon was common in the era of patriarchal way of life and is a means of knowledge and evidence of the existence of customary law. «The early bird catches the worm» can be considered an example of a legal proverb.
Nationwide, everywhere existing law can exist in a society in which not enough precedents or other forms of positive law have been accumulated, therefore duties are declared with reference that «so it is accepted all over the world», etc1.
The study of positive law types and the nature of the emergence of normative facts served to Petrazycki as a means to ascertain the nature of the existing generally recognized sources of law. The scholar assumed that the above does not exhaust the number of all types of non-conventional forms of positive law, and suggested that further research in this area would lead to new major discoveries.
A theory developed by Petrazycki, for more than 100 years, gives ground to many scientists for further scientific studies. Based on his works it can be concluded that law is crystallization of a long, massive and spontaneous experience, not a conscious design and rational actions of prominent individuals2. Such famous scientists as P. Sorokin, G. Gins, K. Sokolov, A. Kruglevsky, N. Timashev et al. were from Petrazycki' Law School, who tried to develop and refine his theory, to give it more objective character.
«Study of the law theory of Petrazycki may acquire a great importance in overcoming in the legal consciousness of presentation on the law as a set of regulations, including the understanding that a legislative act may be incomplete, in need of interpretation, can have a non-legal nature»3.
At present (as in the future) we are surrounded by various unacknowledged forms of law: phone, money, loud, law of the strongest, the right of the first, virtual, tactile, children and others. All of these non-conventional forms of law, as well as those that were considered by Leon Petrazycki need in today's study and understanding on the part of jurists.
«It seems that the mechanism of legal regulation should function in a harmonious system of law forms. The normative act based on the ideal and the material sources must ensure the unity of the legal space of the state built on the principles of the Roman-Germanic legal system»4.
1 Petrazycki L.I. Theory of law and state in connection with the theory of morality. Sankt Petersburg: Lan, 2000.P. 482.
2 See: MedushevskyA.N. Introductory article // Petrazycki/ Theory of law and state in connection with the theory of morality. M.: ROSSPEN, 2010. P. 11.
3 Golovin L.Yu. The theory of understanding of the law of L.I. Petrazycki: history and modernity: dis. ... cand. jurid. sciences. M., 2007. P. 188.
4 Boshno S.V. Doctrinal and other non-conventional forms of law // Zhurnal rossiyskogo prava. 2003. № 1. P. 91.
References
1. Boshno S.V. Doctrinal and other non-conventional forms of law // Zhurnal rossiyskogo prava. 2003. № 1.
2. Golovin L.Yu. The theory of understanding of the law of L.I. Petrazycki: history and modernity: dis. ... cand. jurid. sciences. M., 2007.
3. Mashkovich K.V. Sense of justice and morality in the psychological theory of the law of L.I. Petrazycki // History of State and Law. 2007. № 12.
4. MedushevskyA.N. Introductory article // L.I. Petrazycki Theory of law and state in connection with the theory of morality. Moscow: ROSSPEN, 2010.
5. Petrazycki L.I. Essays of the Philosophy of Law. Issue 1: Fundamentals of psychological theory of law. Overview and critique of contemporary views on the substance of the law. Sankt Petersburg: Tipografiya Erlikha, 1900.
6. Petrazycki L.I. The rights of bona fide owner to income from the point of dogma and policy of the civil law. Moscow: Status, 2002.
7. Petrazycki L.I. Theory and policy of law: selected works / Scientific. Ed. E.V. Timoshina. Sankt Petersburg: Law book, 2010.
8. Petrazycki L.I. Theory of law and state in connection with the theory of morality. Sankt Petersburg: Lan, 2000.
