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Citation: 21 Am. J. Juris.

107 1976
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PETRAZYCKI'S SIGNIFICANCE FOR
CONTEMPORARY LEGAL AND MORAL
THEORY
Aleksander W. Rudzinski
Leon Petrazycki (a native Pole and a Russian citizen) published his main
works on legal and moral theory during the first decade of this century in
Russian. They remained almost completely unknown in the Anglo-Saxon
world. The present essay sketches the main lines of Petrazycki's compre-
hensive and original theoretical system covering both law and morality.
Instead of dealing with legal rules and abstract legal principles, Petrazycki
concentrates on the actual workings of the human mind experiencing the
sense of duty and the rightfulness of a claim. His theory of legal and moral
"emotions" (impulses, active drives) has a distinct evolutionary Darwinistic
flavor. His concept of law embraces a larger class of phenomena than the
narrow traditional one. Apart from the law of criminal gangs, children's law,
and the law of sports, the whole topic of justice, traditionally a part of ethics,
becomes also (as intuitive law) a part of theory of law. A close affinity
between his theory and the contemporary school of emotivism in Anglo-Saxon
theory of ethics becomes evident. Petrazycki's theory serves him as a founda-
tion for a "rebirth of natural law," a practical doctrine of social engineering
aimed at a perfect socialization of man through legal enactments.
I. PETRAZYCKI THE UNKNOWN
THE FIRST THING, A NOT controversial and a rather obvious one, to be said about
Petrazycki's theory of law is that it is almost unknown to the Anglo-Saxon and
English-speaking world, not only to Anglo-Saxon lawyers, but to scholars as well.
Babb's translation of selected parts of Petrazycki's works accompanied by a sketchy
outline of his views published in 19551 did not exert any significant impact on
American jurisprudence and is practically forgotten or ignored. The same applies
to a small number of articles and reviews scattered throughout American law
reviews.
2
Petrazycki's name is conspicuously absent from Anglo-Saxon textbooks
of jurisprudence and books of readings in this field.
3
The only exception known
I H. W. Babb, trans., Leo I. Petrazhitskii, Law and Morality, Introduction by Nicholas S.
Timasheff (Harvard University Press: 1955).
2 Hugh W. Babb, "Petrazhitski's Science of Legal Policy and Theory of Law," 17 Boston
University Law Review, 1937, p. 793; Hugh W. Babb, "Petrazhitski's Theory of Law," 18
Boston University Law Review, No. 3, 1938, p. 511; A. Meyendorf, "The Tragedy of Modern
Jurisprudence," Interpretations of Modern Legal Philosophies, Studies in Honor of Roscoe
Pound (New York: 1947); M. M. Laserson, "Positive and 'Natural' Law and Their Cor-
relation," ibid., pp. 434-449; N. S. Timasheff, "Petrazhitsky's Philosophy of Law," ibid.;
M. M. Laserson, "The Work of Leon Petrazhitskii: Inquiry Into the Psychological Aspects of
the Nature of Law," 51 Columbia Law Review, 1951, pp. 59-82; George S. Langrod and
Michalina Vaughan, "The Polish Psychological Theory of Law," Polish Law Throughout the
Ages, ed. by Wenceslas J. Wagner (Hoover Institution Press, Stanford University: 1970), pp.
229-362.
3 E.g., Morris R. Cohen and Felix S. Cohen, Readings in jurisprudence and Legal
Philosophy (New York, Prentice-Hall: 1951); John Dewey, Readings in Legal Philosophy
(Columbia University: 1927); Jerome Hall, Readings in jurisprudence (Indianapolis: 1938);
Edwin W. Patterson, Selected Readings in jurisprudence, 3rd ed. (Columbia University: 1956);
Harry Willmer Jones, Additional Readings in Jurisprudence, (Columbia University: 1959);
Tom J. Farer, Selected Problems in Legal Theory, (Columbia University: 1971).
107
THE AMERICAN JOURNAL OF JURISPRUDENCE
to the present writer is Edmond N. Cahn who was acquainted with Petrazycki's
views and whose whole approach to law based on modem psychology seems to
have been influenced by the latter.
4
The skimpy remarks on Petrazycki dispersed
through Wolfgang Friedmann's Legal Theory
5
and Jerome Hall's Foundations of
Jurisprudence
6
fail to convey to the reader a picture of the originality, scope of
vision, intellectual vigor, and scholarly importance of Petrazycki's theory.
Needless to say that Anglo-Saxon philosophers active in the field of ethical
theory are completely unaware of the fact that Petrazycki covered morality as
well as law in his impressive intellectual structure.
It is, maybe, high time to bring Petrazycki's ideas to the attention of the
English-speaking and English-writing world. It will be attempted to show that
they are worth it.
II. PETRAZYCKI'S LEGAL AND PHILOSOPHICAL CREDENTIALS
There is no doubt whatever about Petrazycki's qualification as an eminent
jurist. His deep and incisive knowledge of Roman and German law was
splendidly demonstrated in his early works written in Germany and in German,
and connected with the draft of the German civil code (BGB) of 1896: Die
Fruchtverteilung beim Wechsel der Nutzungsberechtigten, 1892, and Die Lehre
vorn Einkommen, vol. I, 1893, vol. II, 1895. They earned him the admiring
description of German jurists: "der geniale Russe."7
It must be stressed that, toute proportion gardie, Petrazycki approached his
task as theoretician of law along the lines and in the manner followed by such
giants as Descartes and Spinoza. He elaborated first of all his own methodology
for social sciences and his own version of scientific psychology before proceeding
to construct on these foundations his own theory of law and morality. His work,
entitled Introduction to the Science of Law and Morality, published in 1908 in
Russian,
8
deals at length and in an original and penetrating way with such purely
philosophical and extralegal topics as: the creation of adequate theories and
adequate classes, the classification of psychical phenomena, "emotions" as a
fourth separate category of psychic phenomena besides sensations, plus images,
feelings, and acts of will. The exact nature of these "emotions" will be discussed
in Section IV.
In a less detailed and clear-cut manner, Petrazycki worked out his own
picture of ontology and society. True to his strongly antimetaphysical orientation
4 Edmond N. Cahn, The Sense of Injustice, An Anthropocentric View of Law (New York
University Press: 1949).
5 Wolfgang Friedmann, Legal Theory, 5th ed. (New York, Columbia University Press:
1967), pp. 29, 85, 244, 346.
6 Jerome Hall, Foundations of Jurisprudence (Bobbs-Merrill Co.: 1973), pp. 59, 110, 117,
119-120.
7 Petraiycki, a Pole and, Russian citizen, was in Germany on a scholarship grant of the
Russian tsarist government.
8 Quotations below will be from the Polish translation by Jerzy Lande, Warsaw, 1930,
reprinted 1959. Quotations from his "Theory of Law and State in Connection with the
Theory of Morality" which also appeared in Russian, vol. I, 1909, and vol. II, 1910, will be
from the Polish translation of vol. I by Jerzy Lande, Warsaw, 1959, and of vol. II by Wiktor
Le.niewski, Warsaw, 1960.
ALEKSANDER W. RUDZINSKI
and his close adherence to actual and factual experience, he discards any and all
imaginary, abstract, and verbal objects as independent realities. There are only
physical objects and living organisms on the one hand, and psychic phenomena
on the other. Petrazycki relies only on observation, either internal (introspection)
or external, of human and animal behavior and on experiment. He stresses intro-
spection specifically.
At the end of the 19th century, the basic split in reality, created along a
new line by Descartes (which, despite a number of efforts has still not been quite
overcome even now), was dominating the minds of philosophers and scholars
alike. Each entity or event was supposed to be either physical in nature or
psychical. The extremists argued that all entities and events are physical, material
(h la E. Haeckel), or, less frequently, that all of them are psychical (panpsy-
chism). Petrazycki never doubted the reality of things material, but strongly re-
jected the existence of superindividual objective spiritual entities (objectiver Geist
. la Hegel). His conception of social groups was also opposed to considering
them as superindividual independent entities over and above the life and ex-
perience of human beings along the lines of Durkheim. Petrazycki's approach
was a strict application of Occam's razor: Entia non sunt multiplicanda praeter
necessitatem. Human society meant to him human individuals in their mutual
interaction and interrelations. His radical positivistic and empirical method
clearly implied the rejection of the reality of God, angels, and devils. He treated
them as creations of human imagination and nothing else. Being deeply imbued
by Christian morality of the Gospels he never explicitly attacked the concept of
God as a figment of human fancy. His examples are Zeus or the devil, but the
inner consistency of his system clearly makes him an atheist.
M. LEGAL AND MORAL "EMOTIONS
'
" AS THE SUBJECT MATTER OF JURISPRUDENCE
"Noch suchen die Juristen eine Definition zu ihrem Begriffe vom Recht."
(Jurists are still searching for a definition of their concept of law.) This sharp
and ironically sounding remark appears hidden in a footnote of the seldom read
last chapter (Methodenlehre) of Kant's famous Critique of Pure Reason, 1781.9
Unfortunately, it still fully reflects the present state of jurisprudence nearly two
centuries after it was written. Petrazycki's valuable and lasting contribution to
this centuries-long and still inconclusive debate was to emphasize the non-
theoretical, strictly professional and thus parochial, too narrow and restrictive use
of the word "law" by lawyers in their scholarly capacity as academic teachers
of law. He likened such pseudotheoretical use of the term "law" to the popular
term "vegetables" coined and used by cooks, greengrocers, and housewives, and
embracing a mixed variety of plants having only one thing in common, namely
that people find them suitable for eating. A further example adduced by
9 1st ed., p. 731, 2nd ed., p. 760. The same remark of Kant appears in his Rechtslehre:
"What is Right (Recht) ? This question may be said to be about as embarrassing to the Jurist
as the well-known question 'What is Truth?' is to the Logician. It is all the more so, if, on
reflection, he strives to avoid tautology in his reply," Kant, The Philosophy of Law, The
Metaphysical Principles of the Science oj Right as Contained in the Metaphysics of Morals,
trans. by W. Hastie (Edinburgh: 1887), p. 44.
THE AMERICAN JOURNAL OF JURISPRUDENCE
Petrazycki was "game"; i.e., all species of animals which hunters customarily
are hunting irrespective of whether they are birds or mammals of various kinds.
No scientifically valuable findings and theories can be made about such a
heterogeneous bag of objects.
10
What Petrazycki stresses is that the theories of law proposed by jurists and
theoreticians contemporary to him artificially narrow down the scope of law
basically to state law only, excluding from the class thus created, phenomena
showing the same characteristics as those included in it. Any theory based on
such a restricted foundation would of necessity be similar, as Petrazycki puts it
jocularly, to a theory proclaiming the law of gravity as applying to the class of
10-gram cigars." Naturally, a further consequence of such a narrow basis would
be to announce incorrectly certain features of state law as applying to law in
general and not as special characteristics of state law alone.
Such an approach to the problem of a scholarly valid, objective, not profes-
sionally influenced concept of law is based on Petrazycki's methodological
postulate elaborated in his "Introduction" demanding the construction of "ade-
quate" theories in social sciences. "Adequate" theories are those which deal with
classes of objects exhibiting common and specific characteristics discernible on
them by external or internal observation. The analogy which Petrazycki seems to
have in mind is with zoological and botanical taxonomy, the systematic classifica-
tion of the animal and plant kingdoms into species, genera, families, orders,
classes, and so forth. It is interesting to note that this theory of adequate theories
corresponding to adequate classes exhibits a genuine similarity to some passages
in Aristotle's Posterior Analytics, although most probably Petrazycki arrived at
his conclusions independently.
12
According to Petrazycki, a scholar constructing scientifically valuable classes
should not only disregard professional use of language, but should not be guided
by the terminology of his native language as well. A sound distrust of the
linguistic usage of words in ordinary language is what he exhibits himself and
advises others to adopt. Far from believing that the historically evolved languages
represent the ultimate in accumulated wisdom and logic of humanity (a belief
prevalent in at least one influential wing of the modern Anglo-Saxon linguistic
school of philosophy),
1
3 Petrazycki considered ordinary language an essentially
practical tool of interpersonal communication molded by practical nonscientific
considerations, full of metaphors and hypostases and therefore often misleading
10 Introduction, pp. 96-97, 129. It may be mentioned here that a very similar view has
been independently expressed by the British moral philosopher Patrick Nowell Smith: "If there
were no gardeners, would there still be weeds?" . . . "(it) depends on the interest of gardeners.
A weed is, roughly, a plant that we wish to eradicate rather than to cultivate." Patrick Nowell
Smith, Ethics (Penguin Books: 1954), p. 72.
11 Introduction, pp. 125-131.
12 See Tadeusz Kotarbifiski, "Z dziej6w pojecia teorii adekwatnej," Ksiega Pariatkowa III
Ziazdu Filozoficznego, Przeglad Filozoficzny 1936, "Z dziej6w pojecia teorii adekwatnej," Przeglad
Filozoficzny 1939, zesz. 3, "Petraiyckiego koncepcja twierdzenia adekwatnego na tle dawniejszych
doktryn pokrewnych," Z zagadnieh teorii prawa i teorii nauki Leona Petraiyckiego, Warszawa
1969, pp. 29-39. See also the present author's "Leon Petraiycki," Kwartalnik Filozo/lczny, vol.
VIII, 1930, pp. 464-476.
13 Richard Rorty, ed., The Linguistic Turn, 1967, pp. 12-24. Rorty cals them "Ordinary
Language Philosophers," p. 8.
ALEKSANDER W. RUDZINSKI
when taken literally.
14
A thorough and consistent application of his method led
Petrazycki to a rejection of the traditional concept of law as not only (a) pro-
fessionally biased and (b) too narrow, but also as (c) of dubious ontological
reality.
The ontological status of norms and rules of human conduct was felt as
awkward and philosophically highly controversial at the turn of the 19th century.
They could not find a proper place in a world picture composed exclusively of
physical objects and events on the one hand, and of psychological data and
processes on the other. It was clear that they did not belong in the world of atoms
and molecules, of gravity, electricity, and magnetism. They somehow seemed
to be connected with human consciousness and action, but nevertheless, could
not be reduced to sense data, feelings, or acts of will.
Petrazycki took a revolutionary step: Law and morality should not be
looked after in the misty realm of abstract norms and rules in the field of mental,
ideal entities. They can be found and observed much nearer in our conscious-
ness, in our experiences of obligation, of a duty to act in a certain manner or to
refrain from doing something. When contemplating or observing certain actions
we are experiencing a specific restraint not to perform them, a repulsion colored
by a mystical authoritative pressure as if coming from on high from some superior
source. And contemplating or observing another kind of action we experience a
specific feeling of approval and attraction accompanied by a prodding, an im-
pulse, a stimulation to perform such action, again colored by a mystical, author-
itative pressure coming from above. Law and morality consist, according to
Petrazycki, of such psychological human experiences containing negative or
positive valuation and a dynamic consciousness of duty. The moral and legal
norm is according to Petrazycki a projection of our moral or legal "emotional"
experience, its reflection, its mirror image partly intellectual in content projected
,outwards and viewed as objective reality. This view, vehemently attacked by
Petrazycki's critics, lawyers, moralists, and sociologists alike,
15
was for all its
radical spirit only a consistent application of his strict ontological dualism and his
rejection of all kinds of fiction and his search for purely factual knowledge.
Petrazycki places both law and morality boldly in the psychological realm,
as specific human experiences. The dividing line separating law from morality
is based by Petrazycki on the existence of two different kinds of dynamic "emo-
tions." One sketched above (morality) contains a specific authoritative restraint
impeding a certain action, but without the conviction that another person has the
right that this action should not be performed or a specific authoritative impulse
to perform a certain act, but without the conviction that another person is entitled
to receive it as his due. There is only awareness of our (or somebody else's) duty.
That is a moral experience. I am morally obliged to give alms to a beggar, but
the beggar cannot demand them from me as due to him; he has no claim towards
me.
14 Introduction, pp. 85 f., 92 f., 101 f., 128 f., 144 f., 169 f., 176 f., 202 f., 206 f., 244.
15 In Russia before the Revolution: B. N. Chicherin, B. A. Kistiakovskiy, P. I. Novgorodtsev;
in Poland: Florian Znaniecki, sociologist, Antoni Peretiatkowicz, jurist, Czeslaw Znamierowski,
philosopher.
THE AMERICAN JOURNAL OF JURISPRUDENCE
When our sense of duty (our duty or somebody else's) is accompanied by a
feeling that a specific action which is duty-bound is due to another person as the
latter's right, we are experiencing a legal "emotion."
The boundaries between law and morality are thus neatly outlined. The two
"emotions" have different contents and operate in a different manner. The
legal "emotions" which are both imperative (duty) and attributive (claim, right)
at the same time, have a tendency for example towards concreteness of what is
due while the moral obligations remain general. Morality does not prescribe how
much I should give to the beggar.
An important feature of Petrazycki's theory follows immediately. Inside
morality, as he conceives it, there are no moral rights of persons, and thus the
whole area of justice (intuitive law) belongs to law. What traditionally has been
considered as moral sentiments influencing legal rules and modifying them is, in
Petrazycki's theory, a process taking place inside the realm of legal psychology
(intuitive law "emotions" producing changes in positive, official law). Here
again, Petrazycki differs from traditional and professional use of language ter-
minology.
The use by Petrazycki of the term "emotions" for the psychological processes
and facts which represent law and morality in the real world is slightly mislead-
ing. They should not be identified exclusively with the feeling of pleasure and
pain. What Petrazycki has in mind when speaking about "emotions" are motoric
drives, impulsive urges, active conscious patterns of behavior accompanied by
intense feelings. Hunger, thirst, sex drive, curiosity, hunting, as well as fear,
anger, revulsion are his favored examples of "emotions." The accent is on the
motoric side not on the emotional one. They are composite but inseparable
psychological units, at once receptive and propelling, passive (stimulus) and
active (reaction) (pati-movere). They result in certain specific chains of actions
(e.g., eating, drinking, sexual acts, flight). They transform the physiological
functions of the organism, preparing the latter for the specific actions, and they
interrupt the normal flow of conscious life concentrating attention on sense data
of appropriate objects and producing relevant imagined mental pictures. The
totality of physiological and psychological effects of an "emotion" represents its
"action," and each "emotion" has its own specific "action." Human activity is
motivated by a variety of "emotions." They represent the most primitive psycho-
logical processes and have to be considered as complex units composed of a
sequence of sense data, images, feelings, and active behavior, products of a long
evolutionary Darwinistic adaption. What zoologists and physiologists have con-
sidered as teleological instincts with their respective specific actions, Petrazycki
reanalyzed into his own "emotions" evolutionarily adapted to biological needs.
1 6
Emotions as drives or impulses to action have to be clearly distinguished from
decisions based on will; i.e., from choices deliberately made between alternate
ways of action. There are appetitive "emotions," where the objects attract us like
hunger, thirst, or sex, and repulsive "emotions," where the object repels us like
fear.
16 Introduction, pp. 469-476.
ALEKSANDER W. RUDZINSKI
Besides such "emotions" which have specific well-defined objects, there are,
as Petrazycki sees it, abstract or blank "emotions" which can be connected with
a variety of actions as their stimuli and objects. Legal and moral emotions, as
well as aesthetic "emotions," belong in this latter category.
Let us repeat: Legal "emotions" are complex psychological imperative-
attributive experiences having a double passive (stimulus) and active (reaction)
nature, where the image of an observed or imagined action releases an emotional
repulsion or attraction and a conviction that actor A is obliged to behave in a
-certain manner (duty impulse) and that such behavior of A is due to person B as
his right. Persons A and B may be both extraneous and observed or imagined by
the person experiencing a legal emotion or the experiencing person may be one
-of the two (A or B). The kind of action or behavior may be physical or even
psychical in nature. Moral "emotions" are analogous with the important differ-
ence that the attributive element is lacking.
17
Having thus identified the realm of law with the functioning of legal "emo-
tions," Petrazycki took considerable pains to show that the attempt of his con-
temporary jurists to present other more conventional definitions of law is er-
roneous. These polemics against such eminent scholars as Ihering, Stammler,
and other German and Russian jurists are by no means of purely historical value.
What Petrazycki proved with exemplary clarity is that attempts to define state
(official) law, the traditional subject of study for professional lawyers, are by
necessity logically circular (definitio per idem) because the state itself is a legal
phenomenon.'
s
This does not contradict the adage that Ex lactis ius oritur or the truth that
revolution (illegality) if successful creates new law. But as long as new law has
not been generally accepted, two antagonistic kinds of law are competing and
both are in existence.
W. PETRAZYCKI REJECTS THE COMMAND AND SANCTIONS THEORIES OF LAW
Probably the most influential and the oldest theory about law is the com-
mand theory. It can be easily traced back to Roman law. Cicero considers law
as iussa ac vetita populorum and as sapientia aut cogentis aut vetantis ad
iubendum et ad deterrendum idinea.
19
The Digest quoting Modestinus pro-
claims: Legis virtus haec est: imperare, vetare, permittere, punire.
20
It is hardly
necessary to mention Hobbes and Austin as classical representatives of the com-
mand theory.
17 A detailed attempt to reconstruct logically the whole field of law and morality in a
uniform manner using only duties and reducing claims and rights to "normative situations" of
specific persons was made by the present author in Prawo sasiedzkie '(Jagiellonian University
Press, Cracow: 1933), passim; and "Obowiazek i uprawnienie," 39 Przeglad Filozoficzny, 1936,
pp. 486-489.
1s Theory, vol. I, p. 370. It is easy to demonstrate this circularity on a recent example.
W. Friedmann defines law as: "a norm of conduct set for a given community-and accepted
by it as binding-by an authority equipped with the power to lay down norms of a degree of
general application and to enforce them by a variety of sanctions." (Legal Theory, 5th ed.
(Columbia University Press: 1967), p. 16, emphasis added.) The authority and its power to
lay down norms and to enforce them by sanctions are not purely factual but are also regulated
by legal norms.
19 De legibus II caput 4 par. 9 and par. 8.
20 1, 7, Digest, de legibus 1, 3.
THE AMERICAN JOURNAL OF JURISPRUDENCE
What is wrong, according to Petrazycki, with such a view equating law
with commands and prohibitions? First of all it is based on a mistaken identifica-
tion of normative facts of positive law with legal norms. Normative facts such
as commands and prohibitions are concrete and specific human actions which are
short-lived in time and can be precisely pinpointed in space. Legal norms are
considered as enduring in time and dominating large territories.
21
Petrazycki places his emphasis on two other arguments: (1) A command
does not create any rights, claims, or demands in the mind of the addressee. The
attributive element, however, is essential for legal thinking and the command
theory cannot explain the appearance of rights and claims. They thus enter the
legal universe like the classic Deus ex machina.
22
(2) What is more (and that is
the decisive argument), the command theory is not even able to account for
legal obligations. A command by a gunman or bandit to surrender money may
create the necessity to hand him over all I have in my pocket, but it does not
result in my experiencing it as compliance with my duty to do so. On the con-
trary, I still consider his command a crime.
23
What is needed to transform a
command into a normative fact is my legal "emotion"; i.e., the acceptance of the
commanded kind of behavior as my duty and as the rightful claim of the com-
manding person or of another person. Such result may occur only when I con-
sider the command as coming from a higher authority revered or at least trusted
by me. Only then will the command create a legal conviction in me consonant
with the command, and only then a legal norm will have been created in my
mind. In other words, using Freudian language, the command has to be in-
ternalized before it begins to function as a source of law.
A contrary view is still expressed by H. L. A. Hart.
24
He stresses as a salient
feature of an obligation the important connection between obligation and
coercion or compulsion. "The essential element of coercion is not the fact (the
chance or the prospect) that evil will follow disobedience, but there should be
an existing system of rules conferring authority on persons to prohibit behavior
and visit breaches of the prohibition with the appropriate coercive, repressive or
punitory techniques of the system." Here it becomes apparent that the com-
mand theory is closely connected with the sanctions theory; i.e., the view that
considers sanctions, mainly coercion or force, as the criterion of legal norms and
law in general.
Petrazycki rejects the sanctions (coercion) theory as well. He distinguishes
between physical force as a sanction which, according to the famous German
jurist, Ihering, characterizes law and psychological deterrence which G. F.
Shershenevich, a Russian theoretician of law, considered as a criterion of law.
Against physical coercion, Petrazycki's arguments are the same as against the
view that all law is state law.
25
This kind of coercion must be legal, and there-
fore such theory represents a definitio per idem, a logical circle. International law
21 Theory, vol. II. pp. 13-15.
22 Theory, vol. II, p. 23.
23 Theory, vol. II, p. 23.
24 "Legal and Moral Obligation," Essays in Moral Philosophy, ed., A. I. Melden, (Uni-
versity of Washington Press: 1958), pp. 82-107.
25 Theory, vol. I, pp. 363-371.
ALEKSANDER W. RUDZINSKI
which mostly lacks legal sanctions and the duties and responsibilities of monarchs
(absolute and constitutional) who cannot be coerced are adduced as counter-
arguments. Petrazycki argues also that the sanction theory implies an regressus
,ad infinitum because the sanctioning norm would require its own sanction and
so
on.
2 6
Petrazycki's arguments against the criterion of psychological deterrence are
less sweeping. Threats of force are often futile because the culprit may not be
aware of them, or is sure that the penalty will not be applied to him, or because
he may even fanatically desire to become a martyr and be punished. Further-
more, some penalties may have nothing to do with force, like removal from
,office, forfeiture of rights, censure, or excommunication. But most importantly
there are legal norms which do not threaten any disadvantageous consequences
when transgressed (leges imperfectae). And the chain of sanctions theoretically
infinite actually stops very soon and the last norm with no threats attached to it
remains a legal norm nevertheless.
2 7
It should be noted that what Petrazycki
rejects here is only the view that there is no law without threats and fear of evil
consequences. His main thesis is that the legal emotional experience consists in a
kind of psychic compulsion (impulse) to do something or to forbear. Such
impulse does not require the consciousness of a threat or of fear of some evil.
V. HOW LEGAL "EMOTIONS" WORK
It is important to keep in mind that the question of the concept of law and
the class of legal phenomena is treated by Petrazycki as a strictly methodological
one. His purpose is to formulate a class of objects about which a scientifically
fruitful theory could be created. Such a theory should be able to find some addi-
tional specific traits or processes besides the characteristics which distinguish
objects of the class from other objects. These may be logical or causal connections
and can be detected by deductive reasoning or by empirical induction using J.
Stuart Mill's methods of agreement, difference, or concomitant variations in
external observation or introspection, such observation being simple or experi-
mental.
This self-imposed task was remarkably well-fulfilled by Petrazycki. He
formulated and discussed in detail the following causal tendencies which can be
found in the functioning of legal psychology but which are absent from the
functioning of moral psychology: (1) A tendency to reach the implementation
of law irrespective of the wishes or lack of them of the obligor (debtor).28
(2) A tendency towards hate and repression in law because of its attributive
character. Morality, according to Petrazycki, has a peaceful character. What
Petrazycki had in mind was primarily Christian morality of the Gospels.
2 9
(3)
There is another tendency which can be traced in the evolution of any legal
system, a unifying tendency absent in morality-a tendency in law to construct a
26 Theory, vol. I, pp. 363-387.
27 Theory, vol. I, pp. 287-398.
28 Theory, vol. I, pp. 228-235.
29 Theory, vol. I, pp. 235-239.
THE AMERICAN JOURNAL OF JURISPRUDENCE.
unitary, positive, heteronomous pattern of general rules to prevent quarrels and
to decide in case of conflict what everybody's duties and rights are. Such patterns
may be customary law or statute law. Accompanying such patterns is the
tendency towards concreteness of content and scope of legal duties and rights.
Moral duties remain mostly vague and general, indicating a direction of action.
but not how far it should go (e.g., the amount due).30 (4) Another tendency
in law consists in seeking to anchor legal rights and duties in facts which are-
verifiable and easy to establish as evidence and to avoid facts which escape public
scrutiny.
31
The unifying tendency of legal psychology results also in the submission of
legal conflicts to third disinterested persons to establish the relevant facts and to
pass judgment on the mutual claims. Courts, court procedure, and court judg-
ment are characteristically legal phenomena by no means restricted to state courts
(ecclesiastic courts, arbitration in private and professional associations, and in
organized
crime).32
All these tendencies of legal psychology which represent a stronger and more
effective motivational force influencing individual and mass behavior result in.
the establishment of a durable well-defined and coordinated system of social,
behavior which is usually called a legal order. Morality being purely imperative
is unable to create such an order. Its role is to soften and improve social behavior..
There are, according to Petrazycki, two social functions performed by the
law, the distributive function and the organizational one. The first function of
distribution of goods acts mainly through the concept of ownership of goods hav-
ing economic value. Petrazycki presents a penetrating legal and psychological.
analysis of the concept of ownership which underlies both the capitalistic system.
and the collectivistic one as well. Not only material goods are distributed by law.
Civil liberties such as freedom of speech, of the press, of conscience, of association,
the inviolability of the person and of the home are also among goods distributed
by legal psychology.
33
The other function performed by law is an organizational one, consisting in.
attributing a special kind of rights to certain persons, namely to issue orders and
attributing to other persons the duty to obey. State authority is only one of the
examples. Parents and children, slave owners and slaves, feudal lords and serfs,
teachers and pupils, chairmen and meetings, drill sergeants and recruits, bishops
and flocks, are among the other examples. Petrazycki distinguishes authorities of
a social service character which include the obligation to take care of the welfare
of the subjects from lordly authorities which are purely arbitrary and autocratic.
He strongly emphasized the point that state authority has a social service char-
acter.
3 4
30 Theory, vol. I, pp. 239-251.
31 Theory, vol. I, pp. 251-253.
32 Theory, vol. I, pp. 253-256.
s3 Theory, vol. I, pp. 257-273.
34 Theory, vol. I, pp. 273-308. It is interesting that Petraiycki, in criticizing the traditional
theories assimilating human societies to living organisms, seems to anticipate modern cybernetics.
He stresses the necessity of transforming the biological sciences in such a way that their laws
could be equally valid in the social sciences and thus both kinds of sciences could form an
adequate class for a theory covering both of them. (Theory, vol. I, pp. 275-6 fn. 21.)
ALEKSANDER W. RUDZINSKI
III
Furthermore,
Petrazycki formulates three evolutionary
tendencies which
become evident in the long-range history of law: (1) The softening of repressive
sanctions and the corresponding
diminution of awards; i.e., the diminution of
the motivational pressure of the law. (2) The change from lower-type crude
stimuli (fear) to subtler incentives (profit motive), and from egoistic ones to
mixed ones, and finally to altruistic ones. (3) The law successively increases its
demands; e.g., the duties of citizens and parents tend to become more numerous
and greater.
To the traditional doctrine of legal relations between persons, Petrazycki
contributed a valuable schema. There are three types of legal relations: (1) The
duty of the obligor may consist in doing something (paying a sum of money,
delivering a merchandise, performing a service, or working) for the obligee; i.e.,
for the rightful claimant (facere). The corresponding
right of the claimant con-
sists in getting these goods or services (accipere). Or, on the contrary, (2) the
duty of the obligor may consist in refraining from doing certain things; e.g., not
to attack the life, health, liberty, property, or civil rights of another person or
persons (non facere), and the other person or persons have the right not to
tolerate such attacks (non pati). Finally, (3) the duty of the obligor may consist
in tolerating certain rightful activities of a person or persons entitled to them
(pati). The latter person or persons have a right to do certain things, they have
certain areas of freedom-freedom
of speech, press, assembly, and so forth
(facere)
.35
It would be easy to demonstrate the clarifying effect of the application of the
above schema of legal relations to civil, criminal, family, administrative,
and
constitutional law.
The above briefly sketched outline of some of Petrazycki's scholarly findings
seems to indicate that his theory was not a negligible contribution to juris-
prudence.
VI. PETRAZYCKI EXPANDS THE REALM OF LAW
By recognizing the attributive-imperative
character of legal "emotions" as
their differentia specifica putting them aside from moral and aesthetic experi-
ences, Petrazycki extended the realm of law to a much broader area than tradi-
tionally jurisprudence was used to cultivate. He did not hesitate to accept this
consequence of his theory and was fully convinced that it represents one of his
most valuable scientific achievements. There are several unorthodox fields which
thus enter the scope of jurisprudence to be analyzed as special kinds of legal
phenomena.
First, games and sports of different kinds such as cards, chess, checkers,
domino, lottery, billiards, bowling, cricket, soccer, football, baseball, tennis,
basketball, wrestling, boxing, horseracing, fencing, etc. The rules governing
such games and sports give rights and claims to certain participants and impose
35 Theory, vol. I, pp. 103-107. For an analysis of Petraiycki's schema of legal relations,
see the present author's Prawo sasiedzkie (Jagiellonian University Press, Cracow: 1933), pp.
1-12, and Z logiki norm (Jagiellonian University Press, Cracow: 1947), pp. 21-26.
THE AMERICAN JOURNAL OF JURISPRUDENCE
corresponding duties on others. The emergence of an umpire-judge in sports
and some games and the well-known turbulent behavior of sport fans indignant
about alleged violations of rules are typical symptoms of an active legal
psychology. The prompt extrajudicial payment of card and gambling debts testi-
fies to the compelling strength of the attributive element of gambling emotions.
A special kind of law prevails among children and between them and their
parents, maids, and teachers. Rules about the time to go to bed or making your
own bed, washing hands and ears, access to TV, and so forth, create a complex
set of rights and obligations clearly understood and not often transgressed. There
are conflicts about ownership of toys or their damage or destruction, some barter
of stamps or other collector's items. Such conflicts are mostly decided by Mom
or Dad. The legal emotions displayed are usually quite vivid.
The requirements of hospitality during social visits and generally the require-
ments of social etiquette (savoir vivre) in a certain social class or milieu have
also an attributive-imperative character and may evoke strong indignation and
retaliatory reactions when flagrantly violated.
The mutual relations among members of a criminal gang are exactly
analogous to orthodox legal relations. Petrazycki often speaks about "delinquent"
(felon) law without mentioning explicitly the Sicilian Mafia or its American
branch. Naturally, youth gangs in American cities belong in the same category.
Having rejected sanctions and force as criteria of law, Petrazycki considers
the mutual relations of a couple of lovers, the relations between friends, between
brothers, and between persons sharing a common household, and naturally
between members of a family, as legal phenomena governed by attributive-
imperative emotions.
Needless to say, religious (sacral, church) law is for Petrazycki as good a
law as any other.
Even when a mentally unbalanced person enters into a contract with the
devil promising him his soul for the guarantee of worldly success, such a fact
must also be considered as a legal phenomenon.
Such a wide field represents in Petrazycki's view the class of law and his
jurisprudence constructs a theory of regularities and causal tendencies governing
the functioning and the evolution of all the components of this broad legal
area.
VII. SOME PROBLEMS PETRAZYCKI DID NOT CONSIDER
It must be noted that Petrazycki does not discuss nor does he answer the
question how legal "emotions" originated in the human species nor how they
originate in the child's mind. We can only guess why he did not tackle this
problem.
In view of this omission, somebody might conceivably raise an objection
against the definition of law by Petrazycki along the lines of the striking aphor-
ism by Nietzsche: "Only that which has no history can be defined."
3 6
Such
36 Genealogy of Morals, trans. by Francis Golffing (Doubleday: 1956), p. 212.
ALEKSANDER
W. RUDZINSKI
objection, however, would be completely unfounded. Petrazycki's class concept
of law covers the whole historical evolution of law from its most primitive
beginnings, as well as all its branches (positive and intuitive law as well). It can
be considered as a minimum definition of law containing only those traits which
are present at all stages and in all branches of law.
Petrazycki assumed that a scientifically correct class must in its definition
contain characteristic traits objectively discernible on each element of the class
taken severally. There is, however, another equally admissible way. A higher
class of whole legal systems may be defined by specifying the characteristics
of
each such legal system. Each legal system decides for itself whether a given
phenomenon belongs to it or not. As an example of such a method, Alf Ross's
definition of the class of law can be adduced. He defines the class of individual
national legal systems and not the class of rules of law. He envisages briefly but
significantly the same wide field as Petrazycki does: national law systems, plus
similar systems like international law, law of a primitive community, law of a
band of gangsters, of an association, and law in an occupied territory, but con-
siders them as only similar and excludes them from his class of law restricting his
legal systems by a double qualification to state law only and in addition to state
"law in action" only; i.e., effective law, rejecting drafts, and intuitive law, as
well as law no longer
observed.
37
Petrazycki's method of class construction is more simple, more ambitious,
and apparently more fruitful. But, in principle, a class of legal systems con-
templated and rejected by Alf Ross instead of a class of legal rules (norms) or of
legal "emotions" is an equally correct manner of building a scholarly class.
VIII. PETRAZYCKI AND ANGLO-SAXON EMOTIVISM
A decisive feature of Petrazycki's theory consists in his view that such moral
and legal terms as duty and right do not describe any discernible, observable
traits of an action or of a person, but are subjective "emotional" reactions of the
person
using
such terms.
3 8
Such rejection of the cognitivist school and the intuitionist school in the
theory of ethics places Petrazycki in a long line of distinguished Anglo-Saxon
philosophers. David Hume formulated it clearly and consistently in his Treatise
of Human Nature: "Vice and virtue are not matters of fact.... Take any action
allow'd to be vicious. Wilful murder, for instance. Examine it in all lights, and
see if you can find that matter of fact, or real existence, which you call vice. In
whichever way you take it, you find only certain passions, motives, volitions and
thoughts. There is no other matter of fact in the case. The vice entirely escapes
you, as long as you consider the object. You never can find it, till you turn your
reflection into your own breast, and find a sentiment of disapprobation, which
arises in you, toward this action. Here is a matter of fact; but 'tis the object of
feeling, not of reason. It lies in yourself, not in the object. So that when you
pronounce any action or character to be vicious, you mean nothing, but that
37 Alf Ross, On Law and justice (University of California Press: 1959), p. 31. Ross states
that "the definition of law does not belong in jurisprudence" but does not explain why.
38 Introduction, pp. 48-51, and passim, Theory, vol. I, pp. 54-70, and passim.
THE AMERICAN JOURNAL OF JURISPRUDENCE
from the constitution of your nature you have a feeling or sentiment of blame
from the contemplation
of it."
'39
Traces of emotivism can be found in Shaftesbury
40
and Adam Smith.
4 1
E. A. Westermarck's classic works follow the same line as Hume. Words
such as "right" and "good" express a specific emotion, that of disinterested and
impartial approval of certain actions; "bad" and "wrong" express an equally
disinterested and impartial indignation. They are implanted in us by social
pressures.
42
A. J. Ayer formulated the general theory that moral judgments are ex-
pressions of emotions and do not state belief about objective facts about the
world, they express the emotional attitudes of those who utter them. He stresses
that the expression "stealing money is wrong" is not a factual statement, not
even a statement about my own state of mind, but merely expressing certain
moral sentiments. The function of ethical symbols is purely emotive. Ethical
statements are expressions and excitants of feeling and stimulants to action.
Ethical concepts are pseudoconcepts and therefore unanalyzable. Ethical judg-
ments are pseudojudgments beyond the realm of truth or falsehood. Ethics
belongs in the department of psychology and sociology.
43
The coincidence of
Ayer's views with Petrazycki is striking. While Ayer is basically polemical and
negative, Petrazycki elaborates a constructive view of "emotions" as motivations
of human actions and behavior of the very person who experiences them, and not
mainly and certainly not exclusively as sources of commands or suggestions to
other persons.
Bertrand Russell's views concerning ethics were following, at least in his
first period, basically the same lines as Ayer's.
44
Alf Ross considers the words "just" and "unjust" as merely an "emotional
expression" otherwise "entirely devoid of meaning." "To evoke justice is the
same thing as banging on the table; an emotional expression which turns one's
demand into an absolute postulate."
4 5
C. L. Stevenson thinks that a moral word does more than communicate the
speaker's attitude (feelings), it tries to create moods and to incite people to
actions or attitudes. Ethical judgments are social instruments; they propagate
themselves by contagion of feelings. Compared to Ayer, Stevenson's emotivism is
of a more moderate variety. According to the latter, ethical terms are emotive
but they are not purely emotive. Cognitive elements are also present in and
relevant to an ethical problem.
4 6
39 Treatise of Human Nature, Book III, 1740, Sect. I, Pelican ed. (Ernest C. Mossner:
1969).
40 Enquiry Concerning Virtue and Merit, 1699.
41 Theory of Moral Sentiments, 1759.
42 The Origin and Development of Moral Ideas, 1906; Ethical Relativity, 1932.
43 Language, Truth and Logic, 1936, pp. 163-166; "On the Analysis of Moral Judgment,"
Horizon, September 1949.
44 Science and Religion, 1938, p. 238; "A Reply to My Critics," The Philosophy of Bertrand
Russell, ed. Schilp, pp. 721-722.
45 On Law and Justice (University of California Press: 1959), p. 274.
46 Ethics and Language, 1945; "The Emotive Meaning of Ethical Terms," Mind, 1937;
"The Emotive Conception of Ethics and Its Cognitive Implications," 59 Philosophical Review,
1950, p. 291-304.
ALEKSANDER W. RUDZINSKI
Stevenson stresses the difference between "beliefs" (theoretical) and "at-
titudes" (practical; i.e., emotional and motoric). His "attitudes" seems rather
similar to Petrazycki's "emotions" lacking only the biological flavor of the latter
which Petrazycki transferred from the field of biology into the psychological
realm.
47
Petrazycki is equally emphatic as Stevenson in stressing the contagious
spreading of moral feelings (emotions) expressed in moral judgments and the
creation of a median resultant emotional valuation,
48
and considers such in-
fluence as a long-range adaptation and evolution of the socialization of man.
Petrazycki, however, analyzes in the first place the impact of a moral or legal
emotion as a motivating factor on the behavior of the person experiencing such
an emotion in foro interno, prior to and independent of the fact whether or not
he expresses his attitude in a statement addressed to somebody else. His method
is introspection plus external observation, and not analysis of ethical language.
But a close affinity of results is obvious. Stevenson deals in subtle detail with
moral arguments used in support of moral judgments to persuade and influence
the hearer's and addressee's attitude and conduct, as well as arguments used in
rebuttal. Petrazycki deals only with "normative facts" as sources of duties when
dealing with positive morality and positive law; i.e., where we experience our
duty as based on the fact that the Gospel or God or the priest or daddy so com-
mands. Petrazycki's morality does not contain suggestions as does Stevenson's,
it contains imperatives only. The practical consequences of an action required
as a moral duty are for Petrazycki beside the point. Moral values are intrinsic,
not utilitarian.
Paul Edwards' classification of metaethical theories may help us to pinpoint
with some accuracy where Petrazycki's theory has to be placed. Edwards dis-
tinguishes: (1) intuitivism; i.e., objective nonnaturalism; (2) objective natural-
ism, such as utilitarianism; (3) subjectivism subdivided into naive subjectivisrn
(moral judgments assert the existence of a feeling or an attitude in the speaker's
mind), public subjectivism (moral judgments assert the existence of a feeling or
attitude in all or the majority of a certain group of people), causal subjectivism
(moral judgments assert that a certain object is producing or did produce a
certain feeling or attitude in the person making the judgment), and error theory
(moral judgments refer to something outside the speaker's mind but are always
false, since all that the speaker has a right to say is that he has a certain feeling or
attitude); and (4) emotive theories (moral judgments have "emotive meaning"
only; they possess no referent, but are either expressions of attitudes or impera-
tives prescribing how to act or both).49
Petrazycki's theory combines in a perspicacious way the error theory with
an emotive theory and with causal subjectivism. It explains the frequence of the
truth of public subjectivism as a result of a long evolutionary process of adapta-
tion and contagion. It succeeds in explaining how attitudes ("emotions") become
imperatives and norms.
47 See Paul Edwards, The Logic of Moral Discourse, 1955, p. 29; and C. L. Stevenson,
Ethics and Language, 1945, pp. 7-19, and passim.
48 Theory, vol. II, pp. 679-682.
49 Paul Edwards, The Logic of Moral Discourse (The Free Press, Glencoe, Illinois: 1955),
pp. 45-47.
121
THE AMERICAN JOURNAL OF JURISPRUDENCE
A clear and radical formulation of the error theory amalgamated with the
emotive theory has been accomplished by John Mackie. He concedes that when
people make moral judgments, they are asserting that an action or a person has
a certain quality of goodness or rightness, or whatever it is; i.e., they are making
objective claims. But since there is no such "independent" quality, all moral
judgments are false. This universal error is due to people's projection in a certain
way of their feelings of approval and disapproval onto the subject of their judg-
ment by a process of objectivation
50
Petrazycki's point, often criticized, is also "projection." He adds, however,
the action-inducing, motoric, impulsive function of the "emotion" of apulsive
approval or repulsive disapproval. Furthermore, a moral judgment is for
Petrazycki a product of a moral "emotion" and does not represent the starting
point of his analysis.
In conclusion, it may be pointed out that the radical feat performed by
Petrazycki was the consistent and iconoclastic application of subjectivism plus the
error theory to the realm of law in the first place and morality as well, stressing
the close affinity of those two realms. In contradistinction to most Anglo-Saxon
emotivist theories of morality, Petrazycki's system far from being purely negative
in its tendencies was intended to provide a scientific, empirical, factual founda-
tion for a revival of natural law.
IX. PETRAZYCKI'S REVIVAL OF NATURAL LAW
A very important aspect of Petrazycki's work is usually being overlooked by
his critics and, ironically, also often by his disciples and supporters as well. The
impressive edifice of his system of theory of law has been painstakingly built by
him in order to serve as a firm modem scientific foundation for what he conceived
as the practical science of "policy of law," a kind of human engineering by means
of legislation, a science how to influence and change human motivation and
character by legal enactments. This science of legislative policy was destined
according to Petrazycki to fulfill the same progressive function which the doctrine
of natural law performed in the seventeenth and eighteenth centuries.
While participating in the last decade of the nineteenth century in the
preparatory work for the new German civil code (BGB) going under way in
Germany, Petrazycki deplored the narrow-minded, strictly utilitarian and often
cynical mental climate prevalent in German jurisprudence at that time. He was
morally repulsed by the influential school of the famous Rudolf Ihering who saw
the role of law in the protection and satisfaction of egoistic material individual
interests and advocated the fight for private rights (Der Kampj urns Recht,
1872). Petrazycki attributed the rejection of natural law at the beginning of the
nineteenth century to the political reaction which overtook Europe after the
French revolution, and to the accompanying decline of moral ideals and prin-
ciples.
5 1
He considered the historical research and dogmatic inquiry into the
50 "The Refutation of Morals," Australian Journal of Psychology and Philosophy, 1946, p.
90, quoted in Paul Edwards, The Logic of Moral Discourse, 1955, pp. 97-98, emphasis added.
51 Introduction, pp. 12, 18.
ALEKSANDER W. RUDZINSKI
contemporaneously binding law as a retrogressive step which has to be remedied
by a renaissance of a modem, scientifically well founded natural law based on a
psychological science of law comprising both positive and intuitive law..
5 2
Accordingly, already in his early comprehensive work, Die Lahre vom
Einkommen (vol. II, 1895), he openly proclaimed the "Rebirth of Natural
Law."
' 5 3
This invocation of a proud past for his new practical science was not
without justification. The new science of legal (legislative) policy was considered
by Petrazycki not as a purely opportunistic, pragmatic, strictly utilitarian, cost-
efficiency calculus, but as an enterprise guided ultimately by a bold, moral ideal,
clearly spelled out by Petrazycki: "The highest good towards which we ought to
strive in the field of policy in general, and legal policy in particular, is the moral
development of man, the domination of high reasonable ethics among mankind;
i.e., the domination of the ideal of love."
' 5 4
"The existing legal system of legal
norms is transitory and should be replaced by another adapted to the achieved
level of social mentality. The ideal is the achievement of a perfectly socialized
human character, the complete domination of active love among men." This is
"the great, bright ideal of the future."
' 55
A bold ideal, indeed. No wonder that such a radical theory arising in a
mental climate of strict legal positivism met with surprise bordering on ridicule.
56
This time the ideal has been brought down to earth by a theory of social evolution
and gradual adaptation of the law to the social mentality and by a psychological
theory of law which Petrazycki developed. He conceived law as a causal
psychological factor of social life which acts in two ways: (1) as a motivational
stimulus releasing or repressing certain actions and forbearances, and (2) in the
longer run as an educational factor consolidating and developing certain inclina-
tions and traits of human character and weakening and weeding out certain
other inclinations and traits, thus gradually bringing behavior and characters
in conformity with the content of binding legal norms.-
57
Accordingly, the task of
the science of legal policy (legislative human engineering) is: (1) a rational
direction of individual and mass behavior by means of appropriate legal motiva-
tion, and (2) the perfecting of the human psyche by cleansing it of bad antisocial
inclinations and by planting and consolidating opposites; i.e., prosocial inclina-
tions.
5 8
This program represented a resurrection of the concept of natural law in
the spirit of Enlightenment anchored not only in the idea of progress but also
of gradual evolution.
5 9
It influenced deeply Rudolf Stammler who transformed
52 Theory, vol. II, p. 302.
53 Die Lehre vom Einkommen, vol. II, 1895, p. 579, and The Social Ideal and the Rebirth
of Natural Law, 1913, Polish trans., Warsaw, 1925.
54 Introduction to the Science of Policy of Law, Kiev, 1896, Polish trans., Warsaw, 1968,
p. 25.
55 Introduction to the Science of Law and Morality, 1908, trans., Warsaw, 1959, pp. 15, 16.
56 See the ironic comments by the great Rudolf Sohm (OUber den Entwurf . . .), quoted
in Petralycki's Introduction to the Science of Legal Policy, Warsaw, 1968, p. 96.
57 Introduction,
p. 14.
58 Introduction, p. 14.
59 How far ahead of his time was Petraiycki's "legislative policy" may be illustrated by
the fact that one of the objections raised by him against the final draft of the German Civil
Code (BGB) was that it perpetuated the oppression of women (Introduction to the Science of
Policy of Law, 1896, trans., Warsaw, 1968, p. 178).
THE AMERICAN JOURNAL OF JURISPRUDENCE
it into a Neo-Kantian version in his Die Lehre vom richtigen Rechte (1902)
which was very influential and is well-known, while Petrazycki's conceptions
have been forgotten.
The invoking by Petrazycki of the hallowed traditional name of "natural
law" for his science of legislative policy seems by no means pretentious or over-
drawn. Kelsen was entirely correct when he stressed that "the natural law
doctrine stands and falls with the assumption: value is imminent in reality."
60
Petrazycki placed legal and moral values into the human psyche and tried to
formulate how they are working in the mental life of the individual and in social
mass behavior. For him law is a natural phenomenon and knowledge of the
tendencies governing its working enables the legislator to guide its evolution
towards the ultimate goal of a perfectly socialized human being.
X. LAW AND/OR MORALITY-WHERE DOES JUSTICE BELONG?
The relation of law to morality and vice versa is a very old problem, and
many eminent minds have pondered about it. The problem is by no means
restricted to the question where to draw the dividing line. It embraces the funda-
mental question whether such a boundary is more than a semantic artifact, a
convenient tool of our language, a purely linguistic and logical abstraction similar
to the distinction between the shape and color of an apple. The alternatives
theoretically possible are very roughly the following: (1) the class of legal and
moral phenomena may be composed of the same constituents having both legal
and moral characteristics; (2) these two classes are mutually exclusive-no
moral phenomenon has legal traits and vice versa no legal phenomenon has moral
traits; (3) they partially overlap--some moral phenomena have legal char-
acteristics, and/or vice versa some legal phenomena have moral characteristics.
Such a static and horizontal picture does not exhaust the theoretical possi-
bilities. Genetically, law and morality may: (1) have a common origin from a
common but qualitatively different source like religion and magic; (2) or, law
may be the evolutionary origin of morality (Hobbes and Nietzsche
61
); (3) or,
conversely, morality may be considered as the source of law.
62
Obviously, the
answer depends in large measure upon the question what we consider to be a
legal phenomenon, what a moral one, and what a religious or magic one. What
complicates the matter and makes it more difficult is the fact that the area usually
called morality or ethics is by no means homogeneous. It embraces the Sermon
on the Mount, as well as Nietzsche's Superman, the precept of chastity and
60 H. Kelsen, A "Dynamic" Theory of Natural Law, 1956, pp. 174-5.
61 Nietzsche's view remains largely unknown to jurists-theoreticians of law. He says: "It is
in the sphere of contracts and legal obligations that the moral universe of guilt, conscience and
duty ('sacred? duty) took its inception . . ." "the feeling of guilt and personal obligation had
its inception in the oldest and most primitive relationship between human beings, that of
buyer and seller, creditor and debtor" (The Genealogy of Morals, trans. by Francis Golffing,
(Doubleday: 1956), pp. 197 and 202.
62 St. Thomas Aquinas teaches that human law derives from principles of eternal divine
law as revealed in natural law [Summa Theologica, Books I-I, Question 93, Art. 3 and
Question 95, Art. 2 (Great Books Foundation, Chicago, n.d.).] This line of thinking char-
acterizes many religious theological moral systems where moral rules represent God's reason
or God's will.
ALEKSANDER W. RUDZINSKI
cults of fertility, pacifism and citizenship of the world, and the precept of ex-
termination of enemies. It brings the minimum elementary conditions and re-
quirements of the existence of an orderly community under the same roof with
exalted ideals of human perfection which hardly can be expected to be practiced
by the masses of ordinary mortals. A special branch is represented by moral
duties towards oneself. Needless to say, widely differing moral systems can be
found in different civilizations and several competing and incompatible ones
inside most countries. A much less flagrant divergency exists in what traditionally
is considered as law. This deep heterogeneity of morals must be kept in mind.
What do these two realms of legal and moral phenomena have in common?
The concept and the experience of a pattern of conduct which is our duty to
follow connected with such valuations as "right" or "wrong," "just" or "unjust,"
(intrinsically) "good" or (intrinsically) "bad." Petrazycki concentrates on an
introspective analysis of moral and legal experiences and treats moral and legal
norms (rules) as "emotional fantasmata,"
6 3
as "reflected images of normative
experiences,"
6 4
or as psychological "projections"65 in line with his thorough
empiricism, his strictly factual approach, and his anti-metaphysical battle against
any kind of fictions in social sciences. He does not start from an analysis of moral
and legal rules, verbal expressions, judgments, dialogue, or reasonings; his starting
point is not the dissection of meaning of moral and legal language. He finds
introspectively moral and legal experiences very similar, both consisting in an
inner pressure (impulse) of duty and distinguished by the fact that legal ex-
periences are imperative-attributive
(rights, claims) and moral ones only uni-
laterally imperative. Thus, intuitive law, and with it the whole realm of justice
traditionally treated by moralists, theologians, and philosophers as part of
morality, was included by Petrazycki into law and became the object of juris-
prudence. Furthermore, moral discourse has been deprived of the concept of
moral rights, claims, and demands.
66
What was left could only be considered
as legal rights and claims, positive or intuitive law rights.
Such a dividing line was adopted by Petrazycki quite deliberately and
consciously. He asks in his magnum opus a rhetorical question: "Would it not
be more proper to include that what we call intuitive law into morality, re-
stricting the concept of law to the respective positive experiences, etc. (That is) a
serious and essentially important question."
67
He answers his own question as follows: "All theses [formulated by
Petrazycki] concerning law and its elements (with the exception of theses about
positive law and normative facts) apply also to intuitive law. Otherwise they
would be lame."1
68
Lame means that the theory would be in such case related to
a too small class of objects, like the law of gravitation when restricted to 10-gram
cigars only. In other words, Petrazycki asserts that the field of intuitive law
63 Theory, vol. I, pp. 55-70, vol. II, p. 21.
64 Theory, vol. II, p. 25.
65 Theory, vol. II, p. 21.
66 Maria Ossowska raised this objection against Petraiycki's theory stressing that according
to his definition of law, practically nothing is left to morality. "Moral and Legal Norms," 57
journal of Philosophy, Number 7, 1960, pp. 254-258.
6? Theory, vol. II, p. 247.
68 Theory, vol. II, pp. 247-248.
THE AMERICAN JOURNAL OF JURISPRUDENCE
(justice) is subject to the same causal tendencies and governed by the same
psychological and sociological regularities as the field of positive law. That is a
question which can be verified or falsified on a factual basis and not a matter of
arbitrary terminology.
It seems to the present writer that Petrazycki's answer to his rhetorical
question is correct. The whole realm of attributive-imperative experiences has to
be investigated as a unit irrespective of traditional terminological divisions and
inveterate scholarly habits. Obviously a mutual interaction between intuitive law
processes (justice) and positive law phenomena is by no means negated by the
acceptance of the view that there is sufficient reason to treat both of them as
constituting a common class for scientific purposes. There can be no correct
theory of law when justice is excluded.
XI. PETRAZYCKI'S CONCEPT OF MORALITY DISCUSSED
Whether the class of morality as delineated by Petrazycki is scientifically
"adequate" and thus a fruitful one is not so clear. In Petrazycki's mind morality
was almost exclusively represented by the teachings of Jesus as related in the
Gospels. In spite of his thinly veiled atheism in ontology he was in ethical and
social matters as deeply and sincerely a Christian as his severe critic and con-
temporary, Leo Tolstoy. The evangelical precepts of humility, chastity, love, and
mercy were for him not recommendations guiding the individual human soul to
moral perfection and ultimate salvation, but binding imperatives, moral duties
in the same psychological category as the prohibition of murder. The only slight
deviation from this line was made by him in relation to the evangelical precepts
not to resist evil. He considers them as "general precepts, figurative and not to be
taken literally,"
6 9
but still treats them as experiences of an imperative obligation
and not as a recommendation only or an advice. Incidentally, a case could
probably be made based on some texts of the Gospels that the turning of the
other cheek and letting the man who sued you to have thy cloak also are not
meant as strict duties (moral or even religious ones). The same applies to selling
your property and joining Christ. They are roads to perfection.
70
It is apparently
not a sin when I fall to turn the other cheek or if I fail to let him have my cloak
also.
The point to be made here is that the moral experiences display intro-
spectively a greater variety of psychic phenomena than Petrazycki admits. They
include (so it seems to the present writer) directives, persuasions, advice, and
recommendations besides strictly imperative experiences of a rigid and binding
duty to act.
Furthermore, Petrazycki seems to consider the consciousness of duty as
essentially and qualitatively the same across the whole spectrum of moral and
legal experiences. It is, however, somehow odd to consider, as Petrazycki
presumably does, the horror and fascination and repulsion we are experiencing
when confronted with the details of a particularly cynical and cruel murder
69 Theory, vol. I, pp. 249-250.
To Math. 5, 48 and 19, 21.
ALEKSANDER W. RUDZINSKI
case (like the Manson case in California, or the torturing and murder of a child
by his mother) as the same psychological emotion of disapproval and repulsion
as the one we experience when told about somebody's failure to pay a ticket for
a parking violation or a telephone bill. The horror and fascination are lacking,
the intensity of our consciousness of duty and of the revulsion is much smaller,
the emotional coloration of disapproval less conspicuous and the impulse to action
may be absent in the latter cases. A fortiori, the same could be said in connec-
tion with our emotional reaction when we are told that somebody did not devote
his adult life to the care of lepers in the African jungle. He who becomes a saint
may well consider his way of life as his sacred duty to God (here is the kernel of
truth in Petrazycki's theory of morality), but hardly anyone else demands it or
experiences his conduct as obligatory. Morality deals not only with duties. There
are moralities of duties and moralities of human aspirations to achieve the height
of excellence and of human perfection.
71
There is quite a distance between the
morality of the social minimum and the morality of ideal individual moral per-
fection; between the viable society of average human beings and its minimum
requirements and a utopian community of saints. But, morality embraces both.
Another question not restricted to morality could be raised. In spite of his
clearly naturalistic and evolutionary approach to moral and legal psychology
which shows strong Darwinistic overtones, Petrazycki does not explain the origin
of these emotions. Why? Neither the phylogeny in the human species nor the
ontogeny in the human child is being broached by him. This is even more in-
triguing because one of Petrazycki's most striking and provocative teachings is
about children's law as a separate category of law experiences; e.g., the child's
claim to ownership of his toys, keeping promises in children's barters, and so
forth.
There are two hypothetical explanations why Petrazycki avoided this
subject. First, he may simply have assumed that legal and moral emotions are
hereditary in the child and surface on the first occasion in life. And, second,
he may have realized that any explanation of their origin must remain highly
hypothetical and speculative and impossible of direct verification or falsification
because we do not remember the experiences of our earliest childhood and we do
not have access to the thinking and feelings of our primitive forebears. He
certainly was not a behaviorist, nor a psychoanalyst. He evidently adhered to the
proud and strict self-discipline of Newton: Hypotheses non fingo.
XI. J. S. HUXLEY'S AND J. PIAGET'S THEORIES OF MORALITY
It is, therefore, interesting to see such an eminent biologist as Julian S.
Huxley combine an emotivist and biologically and evolutionarily oriented theory
of ethics with a Freudian supplement of a primitive superego formed early in the
71 See Lon L. Fuller, Morality of Law (Yale University Press: 1964), pp. 5, 17; H. L. A.
Hart, The Concept of Law '(Oxford, 1961), pp. 177-179; H.L.A. Hart, "Legal and Moral
Obligation," in A. I. Melden ed. Essays in Moral Philosophy (University of Washington Press:
1958), pp. 82-107; J. 0. Urmson, "Saints and Heroes," ibid., pp. 198-216.
THE AMERICAN JOURNAL OF JURISPRUDENCE
infant's second year when it begins to draw a distinction between itself and outer
reality.
72
A similar attempt has been made by the known psychoanalyst, Erich
Fromm.
73
Analogous psychoanalytical studies into the origin of moral and legal
psychology in childhood have been undertaken by Walter Lippmann, Franz
Rudolf Bienenfeld, Edmond N. Cahn, and Albert A. Ehrenzweig.
74
Another very influential attempt to explain the origin and evolution of moral
judgments in the child by the well-known Swiss psychologist, Jean Piaget,
deserves close attention; not only because if finds at least two stages in the evolu-
tion of a child's moral development which escaped Petrazycki's attention, but
most of all because the same two stages have an uncanny resemblance to morality
(as conceived by Petrazycki), on the one hand, and to law on the other hand
(also as the latter understood it). Piaget made extensive research into the attitude
and reactions of kindergarten and school children in the French-speaking part of
Switzerland towards rules of children's games and rules governing their behavior
towards each other. As a result of a sophisticated and meticulous analysis of inter-
views with the children, he distinguished two periods: (1) starting from ap-
proximately two years of age to seven years of age, and (2) starting from twelve
years of age. The behavior of an infant before the age of two is governed, ac-
cording to Piaget, by preverbal motor intelligence and is not accompanied by con-
sciousness of obligation or by a feeling of necessity of a rule only by the feeling of
regularity. Only afterwards, a consciousness of obligation emerges; i.e., a percep-
tion of regularity and a feeling of respect and authority induced by social contact
with parents and adults. The respect for the rule of conduct is unilateral. The
rule is not only obligatory but sacred and coercive as well. The child imitates
the conduct of elders but remains egocentric, unable to differentiate between the
ego and the social environment, and thus his mind is unwittingly dominated by
its own tendencies. Nevertheless, all the opinions and commands which the child
adopts appear to him to be endowed with a transcendental origin. It is a morality
of constraint, a morality of duty pure and simple, and a morality of heteronomy.
75
This sounds almost exactly like Petrazycki's description of moral "emotions."
Putting those two views together, Petrazycki's about moral "emotions" and
Piaget's about moral judgment between the ages of two to seven, one would be
almost tempted to risk the view that such a kind of moral experience is an in-
fantile relic in our adult life.
According to Piaget, at about the age of nine, rules of conduct begin to be
established and stabilized in the children's group, and cooperation, reciprocity,
and intellectual equality and solidarity begin to emerge. Mutual respect replaces
72 Julian S. Huxley, Evolutionary Ethics (Oxford University Press: 1943), p. 10; and
T. H. Huxley and Julian Huxley, Touchstone for Ethics, 1893-1943, pp. 193-216.
73 Erich Fromm, Man For Himself. An Inquiry Into the Psychology of Ethics (New York:
1947).
74 Walter Lippmann, A Preface to Morals (Macmillan: 1929); Franz Rudolf Bienenfeld,
The Rediscovery of justice, 1946; Edmond N. Cahn, The Sense of Injustice, An Anthro-
pocentric View of Law (New York University Press: 1949); Albert A. Ehrenzweig,
Psychoanalytic jurisprudence, On Ethics, Aesthetics and Law, On Crime, Tort and Procedure
(Oceana PubL: 1971).
75 Jean Piaget, The Moral judgment of the Child, trans. by Margorie Gabain (Free Pressi
Glencoe, Illinois: 1960), pp. 3, 80-87; see also pp. 312 ff.
ALEKSANDER W. RUDZINSKI
unilateral respect and autonomy replaces imitation. The rule followed by the
child becomes rational; i.e., it appears as the fruit of a mutual engagement, now
freed from individual caprice and submitted to the control of reciprocity.
76
Piaget's description of the second stage governed by mutual respect and
reciprocity comes very close to Petrazycki's characterization of legal "emotions"
with their attributive-imperative elements. Petrazycki fully recognized the
existence of intellectual elements in legal experiences but does not attribute a
motivating and a driving force to them. Piaget's theory is also in conformity with
Petrazycki's conviction that in the course of evolution moral sentiments tend to
transform themselves into legal enactments, law being a stronger motivating
force than morality and having greater educational value.
CONCLUDING REMARKS
Petrazycki shifted with vigorous determination the emphasis in jurisprudence
from the traditional obsession of jurists with legal rules, codified or customary,
and from abstract legal principles to the actual workings of the human mind
experiencing the sense of duty and the rightfulness of a claim. He radically
relegated the legal norms to the realm of psychic projections and considers them
as verbal formulations of an "emotional" experience. Such an approach should
not be completely alien to those American jurists of the realist school who ac-
cepted Oliver Wendell Holmes's famous dictum: "The prophecies of what the
courts will do in fact and nothing more pretentious are what I mean by the law"
(1897) as their motto and stressed "law in action" as against "the law in the
books." Such well-known names as Karl Llewellyn, Jerome Frank, and F. S.
Cohen have to be mentioned. The proliferating literature concerning the problem
how judges decide cases deals consistently with the psychology of the latter.
Petrazycki fully recognized judges and courts as typical products of the working
of the legal mind and as one (but only one) of the main spots where legal "emo-
tions" are functioning.
Petrazycki's views on legal and moral judgments are in close affinity with
the Anglo-Saxon school of emotivists in ethical theory. The border line drawn by
him between legal and moral psychic experiences is strikingly similar to Jean
Piaget's differentiation between two periods in the evolution of the child's moral
judgment.
And Petrazycki's stress on a variety of human specific "emotions" such as
hunger, thirst, sexual drive, hunting drive, and so forth, and his views that due
to the functioning of the legal attributive-imperative motivation man is a com-
bative animal and that the legal psyche creates conflicts, anger, hate, and repres-
sion-all these views are clearly analogous to the contemporaneous rebirth of the
inherited human instincts hypothesis by such much discussed ethologists as
Konrad Lorenz, Robert Ardrey, Desmond Morris, Lionel Tiger, and Robin Fox.
This topic was regretfully only hinted at in this paper as it requires the pen of a
competent biologist for proper appraisal.
76 Ibid., pp. 81, 307.
130 THE AMERICAN JOURNAL OF JURISPRUDENCE
It seems to follow that Petrazycki's theory of law is pretty close to present
intellectual trends and preoccupations.
Petrazycki introduced a much wider concept of law than the traditional
cherished stubbornly by professionals. We find law also in churches, in sports, in
the children's room, and in the Mafia, too. He included intuitive law and thus
justice as a kind of legal phenomenon into law itself, and not only as a topic of
philosophical speculations about morality and the ideal society. The present
writer considers those steps as important scholarly achievements of lasting value.
His concept of morality seems too narrow. But, let us remember that
Petrazycki, a great and creative mind, was first of all an eminent jurist who tried
to demonstrate the close affinity of law and morality and their constant mutual
interaction in the minds of men. In both these endeavors his success cannot
easily be denied.