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90Law and Modern States № 3 — 2013
THE RELEVANCE OF EMOTIONAL PSYCHOLOGY TO UNDERSTAND THE LAW
Lyudmila Golovina
L. L. D ., Legal adviser ANO TV-Novosti
Abstract: The article describes Leon Petrazycki's original psychology theory of understanding of law and observes the proofs of actuality of his theory for contemporary conditions of the changing forms of state society
Keywords: history of law, understanding the law, evolution of forms of law, behaviour motivation, psychology approach to understand the law.
There is an important Russian scholar in the science of law history, the author of the psychology approach to understanding the law which explains the motivation of human behaviour. The theory of Leon Petrazycki (1867—1931) is related from the start with the author's biography. He proved by the way he lived his whole life that if one realizes the world's imperfection in certain fields one should work to improve them Petrzycki changed from the medicine faculty to law during his studies at Kiev University. Then in Berlin he published a significant work in German concerning joint stock company dividends
Leon Petrazycki was a lecturer for St Petersburg Women's History and Literature Courses and for 20 years was Professor of the Philosophy of Law at St Petersburg University. He played an important role in the opposition Constitutional Democratic Party and was elected to the ill-fated F irst Duma (Russian parliament during the monarchy period) . For his opposition activity he was convicted and sentenced to three months in prison His awareness of socialist ideas enabled him to explain the existence of society without positive (written) law, with the idea that law came into the world earlier than the state
The new bolshevik politicians perverted his explication . Petrazycki had to leave the country and became the first Professor of Sociology at Warsaw University. In 1931 he committed suicide.
Petrazycki wrote mostly in Russian although his early works were in German . There is no full translation of his works and his latest essays in Polish were lost . For European and English speaking people his theory is known from the reviews of critical researchers published in the middle of the twentieth century. J. Gorecki at 28
Stanford University and P Sorokin at the Harvard University had published some works on psychological sociology, developed on the basis of Petrazycki's theory Some scientists who emigrated to the USA and China also devoted their works to Petrazycki's theory (N. Timashev, H Heins) His theory was represented in textbooks only in continental law programmes Some parts of his theory are studied in postgraduate courses in philosophy of law in the themes of nature of law, and mental essence of law
A specific and incorrect interpretation of Petrazycki's theory became the basis to legitimate the illegal new regime in Russia, used to justify the ideologizing process as an attempt to regulate life in society according to the proletarian sense of justice (in the work of P. Stuchka, the first minister of justice in the USSR) and the outrages committed in tribunals Exploration of class justice (fairness) could give us nothing in learning the law and its inner structure, which is available only in the personal psyche The psychology approach could give the possibility to explore the Russian legal tendency to unite law subjects, based on sobornost1 and to appreciate the value of human rights, defending the idea of one human fairness
Some attempts to use psychology in the science of law were made after Petrazycki's theory appeared Legal scholars developed certain psychological approaches indifferent to the type of psychology and what is recognized as its subject and method: for example, solidarism in France and law solipsism in Italy (E. Fitipaldi) . As a result scholars mixed their understanding of science: if they should investigate behaviour or emotions and experience, if experience consists of parts or it could be recognized as a unit of measure like an atom, if they should use observation, experiment or inner analysis (introspection)
Intuitive law is the main point of Petrazhicky's theory, that is phychological appraisal of our own behaviour based on an inner sense of justice (fairness) The basic norms in a democratic state are interconnected and equated for fairness. The importance of written legal rules, if they include the above mentioned basic norms and people realize and execute them, is concluded in self-regulating personal behaviour. Intuitive law appears as dual emotions; empowerment and obligation Persons feel the emotion to demand and to execute such demand The rule of law system supposes to provide each right by obligation This dual principle of law was proved by Petrazycki Written law is not able to regulate social relations by itself Norms
1 Literature on this theme: http://www.sobornost.org/journals-Sob-1.html; http:// www.sobornost.org/Sob-New_1935-1946_TOC.pdf.
Law and Modern States № 3 — 2013
Law and Modern States № 3 — 2013
should be apprehended by people and realized as they were understood depending on people's wills Even the executive power of the state depends on understanding the written norms
Accepting the structure of law as consisting of rights-obligations, future use of Petrazycki's theory can be evaluated in the light of realizing his prognosis: role of positive law is really reduced . It is due to evolved forms of law (as shown at research in Harvard University) and appeared new law-meaning For Petrazycki the law exists in the psyche of the person, in his or her mind, and does not depend on the executive power of the state We observe the evolution of state forms, state functions are changing and political interests of people groups predominate over written norms of international conventions The new law-meaning is able to regulate international relations and economics as much as private life situations We recognize the precondition of such a process in the spread of democracy assuming goodwill in maintenance of law and order on the base of their law-sense The reduced influence of written law and the tendency to reduce legal formalism in justice are factors in the spread of intuitive law
New state forms unite to become more international and do not possess all the signs of absolutely sovereignty We need to investigate the interdependencies and inner legal norms inside each psychological multinational group A general definition of property right may become more conditional due to the legal norms of a certain state One legal entity may acquire different rights in the same property or goods when they are transported around the world The truth of this prognosis is the factor that proves the existence of transnational psychological groups
Learning Petrazcycki's theory helps the achievement of a high standard in professions that apply the law: police officers, prosecutors, judges . His theory is relevant in practice for professionals in all types of state, whether it is called a “nation” and realizes security functions or a more contemporary one in which people are united in groups on the basis of their dominant emotions and experience Thus they unite on psychological criteria but not on social ones or on citizenship, as in the theory of Paolo Virno. Equal arguments in behaviour or life position in the groups united on psychological principles prove the possibility to investigate individuals' minds to find equal fairness Petrazycki studied the struggle for survival among emotions (impulses) and the group of emotions that become more common if they offer survival for people who feel them
Petrazycki showed the absolute impossibility of creating legislation to satisfy all types of fairness, especially opposites Legislative authority is guided by its own sense of fairness during the legislative
process Only a narrow group of wealthy people is able to influence that process by means of lobbying Thus the legislation protects only a few people, personalism takes place . Legislation is a process being executed voluntarily
Petrazycki's theory includes some contradictions that were obvious to his contemporaries Such contradictions could be eliminated on the basis of what we now know from the intuitivism theories of Lossky, Frank and Karsavin who developed the units of good and evil, and the similarity of individual and collective phenomena Their works were published widely in Europe in English Solidarism and union of persons joined by a sense of love (psychological inner energy) gives the opportunity to know the truth and to realize common values . The level of its realization determines the intuitive law The unknown problem for non-Polish and non-Russian researchers is that Petrazycki could not be understood correctly even in Russian It becomes easier to understand his works when new words and equivalents are used, which did not exist earlier. Based on current knowledge of philosophy and psychology, the misunderstandings that appeared in his theory can be resolved . As a result an adequate understanding of Petrazicky's theory could be reached
A matter of curiosity and relevance at present is in the values from the Bible included in Petrazycki's theory: love, for example . In his theory, love represents the inner energy which moves us It directs and is determined by the whole sum of human knowledge, by the sense of justice Contemporary research into evidence of pre-given norms and the order of creation (Association for Reformational Philosophy, VU University, Amsterdam) has made Petrazycki's theory very real due to Christian values and methods of understanding reality being very relevant to those which were used by Petrazycki Only love and clarity, evidence of pre-given norms, could change people's behaviour to be more acceptable to society by alteration of human wishes and minds and to make human intentions sincere Executive power, intimidation or material stimulation can only change people's behaviour
The modern renewal Petrazycki's theory seems very appropriate to understand the reality of changing the state and legal forms, to discover the interdependencies and directions in forming new groups in society, and their sense of justice Successful attempts to revive this theory could give the methods and principles to rule people's behaviour as a result
Law and Modern States № 3 — 2013
