Petrażycki, Finnis, and Evolutionary Jurisprudence

Mauro Barberis

Abstract: Leon Petrażycki’s works, and Polish-Russian realism issued

by them, raises at least five issues, deeply intertwined with the nine
proposed by John Finnis. First, the issue of naturalization – can law,
morals and ethics, become object of empirical, scientific studies, and
to what extent? Second, the issue of ontology – what is the realm of
reality, if any, to which law belongs? Third, the methodology’s issue –
what are the most appropriate methods for legal dogmatics and
jurisprudence? Fourth and fifth, the issues of distinction between
natural/positive law and law/morals respectively, with the connected
question of evolution: really, how Petrażyski suggests, does ethics
evolve in three stages, namely intuitive law-morals, positive law-
morals, and love of mankind? In order to cope with such challenges, I
will argue an antiformalistic, realistic and evolutionary approach is
needed, able of implement the powerful insights coming from
Petrażysky’s legacy.

1. I’m not a specialist of Leon Petrażycki – in fact, I have read only

his texts abridged and translated into English (Petrażycki 1955).
Moreover, these abridgements/translations date back to early twentieth
century, and in fact they provide only the Petrażycki’s original
psychologistic ideas, regardless of their subsequent sociological
developments (Podgórecki 1980-81). As if this were not enough, by
reading some of his Polish or Russian pupils, I realized Petrażycki, so
to speak, is less an author than an entire literature.
If, nevertheless, I offer this contribution, it’s due to three reasons.
The first one is the generous encouragement by Edoardo Fittipaldi,
who provided me with a huge amount of secondary sources and
helped me to fill some gaps of primary ones. The second reason are
the suggestions coming from natural law-driven criticisms by John
Finnis. In fact, Petrażycki’s work, dates back to a time when both
natural law and anti-formalistic movementes reacted in a similar way
to the legal positivism (Barberis 2011).
The third and more important reason for offering this contribution
is precisely the privilege to discuss with eminent scholars a possibile
research program developed from Petrażycki. Such a program is, I
believe, just as far from psychological realism as from natural law –
call it an anti-formalist, realistic and evolutionary approach. In such a
perspective, perhaps coherent with Petrażycki’s legacy, his work
raises at least five questions, intertwined in many points with the nine
raised by Finnis.
Before dealing with such questions, however, another preliminary
remark is in order. Petrażycki, I was saying, is less an author than an
entire literature, and this in a twofold sense. On the one hand, of
course, he is the founding father of Saint Petersbug School and Polish-
Russian legal realism (cf. Brożek, Stanek, Stelmach 2018). On the
other hand, his jurisprudence is only a part of an overall normative
philosophy, generally oriented, directly, towards the building of a
“scientific” legal policy, indirectly, a human society inspired to an
ethics of love.
In today’s division of academic labor, there is a legitimate
temptation to ascribe Petrażyski’s contributions to sociology of law
(see f. e. Podgórecki 1980-81; Kojder 2006; Motyka 2006). To give in
such a temptation would be reductive, although. Petrażyski is a
philosopher in the better and broader sense of the word (see Fittipaldi
2016a; Antonov 2016-17): a forerunner of many further scientific
inquiries. Such a remark, we’ll see, is necessary both to understand
and to criticize him.

2. The first more general issue raised by Petrażycki’s jurisprudence is

naturalization of law: a much debated question, today, and one
addressed implicitly by Finnis too, albeit under other headings and
with other purposes, somewhat opposed. Finnis’ heading for such an
issue is «Empiricist Inference»: the real fallacy, in his opinion,
consisting in drawing from the spectacular successes of modern
sciences the hasty conclusion that humanities too must adopt the same
empiricist paradigm (Finnis 2019: 2?).
The actual purpose of such a criticism, addressed by him to
Petrażycki and to all legal positivist/realists alike, is claiming the
primacy, the persistent validity and the autonomy, compared to
modern scientific revolution, of the central tradition of Western ethics:
the Aristotelian-Tomist natural law. Naturalization of law, from
Finnis’ point of view, is a pseudo-problem or precisely a fallacy: the
adoption, in order to study humanities, of an empiricist drift suitable
only for hard, natural sciences.
I agree with Finnis that two cultures’ dichotomy is outdated: in
fact, methodologies of many different sciences (exact, natural, and
humanities too) do exert important mutual influences. Moreover, I
agree with him legal philosophy cannot be reduced to a merely value-
free enterprise. Max Weber himself, after all, conceived of value-free
sciences as oriented towards normative values too, and not to
cognitive value of truth alone. These reasons, however, aren’t
sufficient, perhaps, to endorse Finnis’ approach.
On the one hand, to reframe natural law in terms of political and
moral philosophy generally (as does Finnis 2012) don’t is enough to
immunize it from consequences of modern scientific revolution. In
fact, today we cannot practice anymore either political or moral
philosophy as we did before the introduction, by modern sciences, of
their more demanding paradigms. Human life itsef, after all, is also a
subject for biology, whose technical applications are medical and
legal, and whose philosophy is not theological creationism, but
scienitific evolutionism.
On the other hand, naturalization don’t amounts to reduce both law
and morals (i. e. ethics, in Petrażyski’s wording) to a subject of natural
sciences, as Finnis seems contend. On the contrary, naturalization’s
problem can be posed at three levels, as suggested by Bartosz Brożek
(2017), by distinguishing three possible objects of naturalization: 1)
law (and morals); 2) legal dogmatics; 3) (general) jurisprudence,
including philosophy of law as its normative continuation.
Law is the object of an ontology of law: a topics we will deal with
at § 3, by examining Petrażycki’s psychological realism. Both legal
dogmatics and theory/philosophy of law, instead, are subjects of legal
methodology and epistemology, respectively: a further issue for a
naturalized and specifically evolutionary legal methodology, here
discussed at § 4. Since the seminal contribution of Willard V. O.
Quine (1969), in fact, the true object of naturalization is not ontology:
is methodological continuity of science and philosophy.

3. The second issue, in order to appreciate the present-day relevance

of Petrażycki’s realism, is precisely the ontology of law. This is not, of
course, the answer to the old but always fundamental question «What
is law?», to which legal theorists answer by providing a definition or a
concept of law. Ontology, I believe, is a different although connected
matter: what is the realm of reality to which law belongs? An issue, I
suspect, not so important in itself but for legal dogmatics’
methodology and jurisprudence’s epistemology alike.
Ontological problem is a challenge precisely for an evolutionary,
naturalized approach focusing on continuity from nature and culture,
science and philosophy. Such a relationship is today explained in
terms of supervenience or covariance (cf. Brożek, Rotolo, Stelmach
2017) or rather of emergence: that is, an entity has properties its parts
do not have. The very concept of emergence, it seems to me, implies
the ontological and epistemic non-reducibility of cultural entities to
natural ones (O’ Connor, Wong 2012; Haak 2019).
If the issue of ontology can be reformulated this way, then many
versions of Continental legal realism becomes flawed. In particular,
Scandinavian and Polish-Russian legal realisms appear reductionist
stances (see Fittipaldi 2012: 12, n. 5; Gizbert Studnicki 2016), not less
reductionist, anyway, than idealist ones. This is also the reason why
Finnis is partially right when he maintains that «No study of
emotional experiences is needed to understand and acknowledge
moral or legal normativity» (2019: 8?).
Such a statement is only partially right, however, because really
ethics emerges from human impulsions, as Petrażycki dubs them,
which in turn pertain to the natural history of ethics. On the other
hand, this is also the partial truth in emotivism or expressivism: they
can be only the explanatory part of metaethics, concerning the
evolution of ethics from human impulsions. Emotivism or
expressivism, instead, fail to be the justificatory part, justifying a
normative ethics whatsoever (see Wałuski, 2018, 53 ss.).
Anyway, the reasons why Finnis is partially right and
psychological realism is wrong, even in the versions by Axel
Hägerström (1908) or Enrico Pattaro (2005; but see Fittipaldi 2016:
451-456), are almost four. First reason is the same fallacy of
entification or hypostatization (Narváez Mora 2015) ascribed by
Petrażycki to positivistic jurisprudence. If “reality” denotes not only
things, but also relationships and processes (see again Fittipaldi 2012:
33), then psychological realists fall into an equal and opposite
hypostatization. The empirical status of emotional experiences, after
all, is not less doubtful than the Kelsenian Sollen.
Then, psychological realists conceive ethics as issued by
subjective emotions, without be able to explain the latter’s
convergence towards objective norms (see even Fittipaldi, 2012: 83).
Historical legal processes like positivisation, formalisation or
unification, here, don’t help us to explain convergence, for law,
according to Petrażyski’s definition, always remains an eminently
subjective phenomenon. This is the second and perhaps the most
serious reason why psychological realism is wrong.
The third reason, however, is even worse, under other respects.
Petrażycki contends the truth of psychological ontology could be
tested simply by reflecting about one’s own emotional experiences,
confortably seated on a sofa (Petrażycki 1955: 13). In fact, this is
precisely the claim of the (general) philosophy of all the times – self-
sufficiency, to be able to do without the empirical sciences. In fact, far
from drawing on an experimental psychology, Petrażyski builded a
merely philosophical one.
A more charitable point of view, however, should remind us that
Petrażycki’s psychologistic ontology is not an end in itself, but a part
of a more comprehensive philosophy of law, oriented to a “scientific”
legal policy (here, § 6). In such a perspective, even such
psychologistic ontology may not be useless, if supported by more
updated scientific tools. In any case, this seems the true Petrażycki’s
“realistic” difficulty: really an ontology could ground a methodology
and an axiology, or the other way around is the case?

4. Methodology, in fact, is the third problem implicitly raised by

Petrażycki’s philosophy and, more explicitly, by Finnis’ criticisms
too. Not ontology but methodology, in fact, is the real issue raised by
Brożek tripartition of objects of naturalization: a tripartition which
already enpahasizes less law’s ontology proper than methodology of
legal dogmatics and jurisprudence too. A view, this, perhaps more
coherent with Quine’s idea of naturalization and its legal
consequences (Leiter 2007, 2011 and Ratti 2017).
I label this view as the primacy of methodology on ontology.
According to such a view, the core of antiformalistic or realistic
approaches to legal studies is not any Reality Thesis, à la Hägerström,
but the opening of both legal dogmatics and jurisprudence to social
sciences: psychology, sociology, political science, economics, ans so
forth. Here, of course, some great dichotomies are in order: positivism
vs. realism; formalism vs. antiformalism; internalism vs. externalism
(for the latter see Gadzhiev 2017).
In order to capture Petrażyski’s original stance, however, is
perhaps more interesting to move in the footsteps of Brozek’s
tripartition and carefully distinguish the methodology of legal
dogmatics and the methodology of jurisprudence. In fact, unlike
Anglo-American authors like Finnis and in some ways Scandinavian
realists too, who all tend to ignore dogmatics/jurisprudence distinction
and thereby to conflate the two issues, Continental authors like
Petrażyski not only do not conflate them, but can take different
positions on each of them, as we’ll see quickly below.
As for legal dogmatics, Petrażycki’s stance, unrelated as it is both
to Scandinavian realism and Finnis’s natural law, seems more able to
capture the functions actually fulfilled by it. Already a self-labeled
post-realist author like Aleksander Peczenik remarked that legal
dogmatics irreducibly fulfills two main functions: interpretation and
systematization of law (Peczenik 1975: 89). Petrażycki adds a third
function, an unifying one (Sadurska 1987: 80). Said otherwhise, every
jurist, and legal dogmatics as a whole, promote the ideal of legality,
by generalizing the solutions to cases provided by judges and
legislators.
Nothing comparable, evidently, with the very Wertfreiheit
obsession affecting the Scandinavian legal realism, and which leads
authors like Alf Ross to propose the replacement of legal dogmatics
with a realistic science of law more similar to sociology of law,
although, than to dogmatics as commonly understood (anyway, on the
problematic application of “realism” to Petrażycki critical realism, see
today Fittipaldi 2018). Nothing comparable, again, with any
sociological jurisprudence whatsoever: a method to solve legal
practical problems which is characteristic, rather, of American legal
realism and pragmatism.
As for jurisprudence, instead, Petrażycki’s stance is less original, as
it is more like that of all the other realists. In particular, he too
proposes a general theory of law, quite different from the positivistic
and normativistic allgemeine Rechstlehre elaborated a few years later
by Hans Kelsen. If there is an original feature here, it is the emergence
of an evolutionary theory of law and society: a theory first spelled
out by Petrażyski himself, in terms of intuitive/positive law and
law/morals relationship (see below, §§ 5-6), then further developed by
Jerzy Lande and Max Laserson.
Always as for such a stance, Lande asks himself: «How can his
[Petrażycki’s] system be classified? To which group does it belong? I
believe that “evolutionism” would be the proper label» (Lande 1975:
37). In the last page of his English translation/abridgement, indeed,
Petrażycki delays the issue of legal evolution to later works, but
already concludes that all human processes «are analogous to the
struggle for existence and natural selection […]. Such unconscious
adaptation, improvement and develepment takes place in all the
spheres of life» (Petražycki 1955: 330).
Far from be original, such Darwinians-like statements can be found
in quite any social thinker of the same era: so, such statements do’nt
help us in order to identify Petrażyski’s specific contribution to an
evolutionary jurisprudence/philosophy of law for the XXI century.
Yet, by considering these suggestions both in the context of today’s
legal evolutionism (see Załusky 2009, esp. 26-28; Barberis 2019), and
in perspective of Petrażycki’s legal policy, one could draw from them,
by way of conjecture, the following consequences.
 Evolutionary approaches, both direct (evolutionary psychology,
sociobiology, behavioural echology, gene-culture co-evolutionay
theory…) and indirect (Austrian socio-economic methodology, theory
of systems), share three main ideas, all coherent with Petrażycki’s
original inspiration and legacy too. The first idea, to be sure, is the
blind-variation-selective-retention mechanism itself – an idea then
reframed by Friedrich Hayek in terms of unintended effects of human
action, and lastly by Niklas Luhmann in terms of growing complexity
and contingency of modern, positive law.
The second idea is autonomy of human mind, no longer conceived
as a blank slate on which nature or culture could inprint any content,
but as an active system, shaped by evolution, in order to meeting the
environment’s challenges. Such a vision of human mind, based on
instrumental rationality, approximates to, and updates too, the human
reason’s ideal revived by Finnis. Contrary to the old prejudice shared
by the latter, indeed, such an evolutionary idea it’s not incompatible
with Finnis’ ideal of human flourishing.
The third idea is modularity of human mind, i. e. cognitive and
normative fragmentation of it: an idea which captures both
methodological pluralism concerning natural and cultural sciences,
and axiological one concerning (meta)ethics. As for (meta)ethics, in
fact, Finnis himself always acknowledged the plurality of the
fundamental human goods, even if he reduces them to only seven
(Finnis, 1992, ch. iv). I consider such an acknowledgment, although, a
step towards value pluralism: the idea that human values, ultimately,
are plural, conflicting and incommensurable.
Maybe, not only methodology precedes ontology, but axiology
precedes both, at least by contributing to select and reconstruct the
main legal, moral and generally ethical issues. Here, the Finnis’ view
about positivist jurisprudence as the cognitive part of a normative
philosophy sounds very reasonable – with an important qualification,
although. Normative ethics too cannot anymore to ignore modern
science(s), in particular evolutionary biology, and generally the
world’s explanation that does without the creationist hypothesis.

5. The fourth issue at stake is intuitive/positive law dichotomy. The

most original feature of Petrażycki’s stance, seemingly, is the
reframing of natural law in psychologistic terms. By “natural law”,
however, he refers to nothing more than the academic literature so
labeled: intuitive law is all another story. Before addressing the latter,
however, a bird’s eye look to the definition of “law” by Petrażycki is
needed, and even before that to the idea of an adequate theory it
presupposes (a charitable view in Kotarbińsky 1975; a similar idea, in
terms of consilience norms, in Leiter 2007: 50).
As for the definition, one must always remember Petrażycki
jurisprudence predates the linguistic turn in philosophy: namely, the
split of analytical philosophy, seeing the world through the lenses of
language, from a Continental, speculative, and especially
phenomenological one, which still claims to grasp the things in
themselves (see Dummett 2014). Petrażycki, like many of his Polish-
Russian followers, must be viewed on such a pre-analytical
background (see at least Timoshina, Lorini, Żelaniec 2016, esp. 534-
537).
Petrażycki definition of law, in particular, still concerns more the
legal phenomena, i. e. the nature of law, than the term “law” referring
to them: an issue, the latter, belittled by him as mere lexicography. In
this view, there is a sound as well as a puzzling side. The sound,
methodologically pluralist side is that a definition, far from to be
likely to grasp the nature of phenomena designed by the term, is just a
more or less suitable tool for building an adequate theory of them.
Accordingly, different theories and definitions of law can be
proposed, depending on various theoretical or philosophical aims.
The puzzling part of Petrażycki’s view, instead, is the idea,
methodologically monistic, of only one adequate theory – his own, in
fact. According his Principle of adequacy, in particular, a theory is
adequated if, but only if, it grasps just the phenomena theorized,
nothing more and nothing less. The trouble, here, is that theories, a bit
like rules in Frederick Schauer’s jurisprudence, are always both over-
inclusive and under-inclusive compared to the facts theorized – unless
one assumes, of course, they correspond to a pre-established nature or
essence.
The point, here, is that natural languages are framed in genera and
species, while the world is not. In fact, Petrażycki’s theory of law
concerns only what he assumes idiosincratically law is – what boils
down to a stipulative definition of “law”, traced more on the Polish
“prawo” and the Russian “pravo”, both meaning “law” and “right”
alike, than on the English “law”. This, perhaps, would be sufficient to
explain the most counter-intuitive character of his legal theory, based
on positive/intuitive (or non-positive) distinction.
According Petrażycki, in fact, positive law-right differs from
intuitive one for it is projected and objectifyed into external facts like
customs, statutes, precedents, and so forth: facts, mind you, perfectly
unreal, in his view, where real is only the-law-in-the-mind-of-
individuals. In Petrażycki’s theory, yet, there is still space for legal
institutions: law, depending on its use by official authorities, is
classified into official and unofficial law. So, by combining
intuitive/positive and official /unofficial distinctions, a four-square
taxonomy of law is built.
Said otherwise, Petrażycki classifies legal-moral phenomena, law-
right corresponding to prawo-pravo in-the-mind-of-the-individuals, in
four categories: 1) positive-official; 2) positive-unofficial; 3) intuitive-
official; 4) intuitive-unofficial (so Timasheff 1955: xxviii). In this
way, sure, Petrażycki accounts for almost the phenomena belonging to
the sphere of ethics, inf not of esthetics too. But mind you, again, that
only the law sub 1) meets, roughly, the ordinary meaning of the
English “law”, with its today prevailing institutional dimension.
To make matters worse, one must never forget, although,
Petrażycki’s prawo and pravo, law-right, remains always, throughout
its entire evolution, a psychological fenomenon: an impulsion (or
appulsion/repulsion, in his jargon) which originates in the individual’s
psyche. Here the most delicate step of Petrażycki’s evolutionary
theory occurs, sometimes called by him a mistery (Petrażycki 1955:
329). From a point of view internal to his theory, in fact, law remains
always an individual, intuitive, subjective phenomenon. From an
external point of view, instead, one could ask why such phenomenon
progressively ends up being perceived as a collective, positive and
objective institutional fact.
The answer by Petrażycki to such a question is only conjectural,
too general and finally unsatisfactory, yet it suggests the very
direction in which one could search for a better one. Petrażycki speaks
of an inter-subjective process of adaptation: a mutual adjustment of
individual emotions, leading us to find in certain facts like customs,
statutes and precedents the very sources of positive and inter-
subjective law. “Adaptation” is the keyword here, for it already
evokes an evolutionary explanation.
Petrażyski, be said to his honor, is perfectly conscious of the flaws
affecting the notion of adaptation. Neverthless, he defines it and
classifies three kinds of adaptation as well. The definition is
formulated by him in the usual psychological terms, as mutual
adjustment of emotions: not, say, in terms of expectations, the
terminology of later game theory. His classification, on the other
hand, identifies three kinds of adaptation to environment – egocentric,
by the individual, sociocentric, by a human group, philocentric, by the
human species generally (Petrażyski 1955: 212-217).
In order to understand what sort of evolutionary reinterpretation
such a notion of adaptation could have, indirect (cultural) and direct
(biological) evolutionism must be distinguished again. By adopting an
indirect, soft or cultural form of evolutionism, adaptation could be
refer to an invisible hand explanation, analogous to which offered first
by Bruno Leoni (1964) and then by Hayek (1982, vol. I: 10-46): legal
institutions emerge from individual claims (Sadurska 1987: 73, n. 40).
If you adopt a direct, hard or biological form, instead, “adaptation”
refers to the typical Darwinian explanation: evolution selects legal
institutions most apt to survival of humans, and of themselves too.
Both explanations, as is well known, are too indeterminate,
although: in fact, they are compatible with many different states of the
world. As for the second one, in particular, Petrażycki himself (1955:
329) contends: «The Darwinian theory […] is in no state to explain
the socio-psychic adaptation, which is independent of the dying out of
individuals and the breaking up of groups». Anyway, both
explanations paves the way to a deepening of social theory in the
perspective of a cultural or (socio)biological spontaneous order,
respectively (see Podgórecki 1980/81: 189).

6. The previous remarks do extend to the fifth question raised by

Petrażycki’s legal philosophy – law/morals distinction (see Ossowska
1975). In the positivist tradition dating back to the Auschwitz’s
trauma, and marked by Herbert Hart’s Separability thesis, the fifth
question conflates with the fourth one: so, natural law and morals, or
morality, tend to collapse. The definitions provided by Petrażycki,
instead, aren’t affected by this flaw: if such a conflation is a flaw, of
course.
 In fact, within Petrażycki’s ethical or practical philosophy as a
whole, the distinction law/morals intersects with the intuitive/positive
dichotomy, regardless of any logical or historical priority between
them. The distinction law/morals, again, boils down to a stipulative
and idiosyncratical definition of “law”, just like the positive/intuitive
law’s one. According Petrażycki, law would be a bilateral normative
phenomenon, a relationship between a duty and a claim (see again
Leoni 1964), while morals would be an unilateral one, where others
cannot claim the fullfillment of the duty.
As for morality too Petrażycki distinguishes between intuitive and
positive morality: where “positive morality” corresponds roughly to
use of such an expression by John Austin, whereas “intuitive
morality” has a completely different meaning from Hartian “critical
moraly”. Here again, I believe, the only way to make perspicuous
such classifications, and to capture the sense of these distinctions, is to
model them in a sort of conjectural evolutionary scheme in three steps,
whether it corresponds to Petrażyckian philology or not.
The first step is just the intuitive stage, regardless of its moral or
legal character: here, ethics (the Petrażyski’s hypernym for both) or
sense of right (the very meaning of Polish “prawo” or Russian
“pravo”) arises and flows, directly, from emotions or impulsions of
individual psyche. Metaethical emotivism/expressivism, by the way,
do explain precisely this step of ethics’ evolution – intuitive ethics, the
very beginning of the story. A normative ethics, on the contrary,
couldn’t be justified on such a basis without violating Hume’s Law,
forbidding deduction of norms from mere propositions.
Under this respect, Finnis is certainly right when he criticizes
Petrażycki’s substitution of natural law by intuitive right. In the
central tradition of Western ethics to which he appeals, indeed, natural
right has another component, which becomes more and more
prevalent in modern doctrines: reason. Yet, Petrażycki’s vision of
ethics could explain, directly, the origins of natural law, with the
projection of right in the so-called nature of things, and indirectly its
rational character too: reason is not, after all, the slave of passions,
rather passions are the evolutionary origin of reason.
The second step of ethical evolution is just the positive stage, both
legal and moral again. Here, the contents of ethics or right are
identified by projecting subjective emotions into social facts/ sources
such as customs of positive morality, and statutes or judicial decisions
of positive law. On this subject Petrażycki’s ideas are summarized by
Lande 1975, his more direct pupil (but see also Laserson 1947), by
spelling out them in other three evolutionary legal sub-trends. Nothing
more than trends, anyway: Petrażycki, like Darwin, carefully avoids
evoking iron laws of evolution.
First legal sub-trend is the following: law become always more
demanding as far as the process of positivization advances. Lande
exemplifies this tendence with progresses in criminal law, but the
same trend is perceptible in any field of law. Regulated behaviors
grow numerically, but also qualitatively: an entropic trend captured by
the Luhmann’s idea of complexity. A tren hardly compatible,
however, with Petrażysky’ final step, i. e. the substitution of positive
law by the morality of neighbor’s love.
Second legal sub-trend is that «at more advanced levels of social
developments, the law produces identical behavior by the use of
higher incentives» (Lande 1975: 30): where “higher” means mostly,
but not exlusively, more efficient, in a merely theleological sense.
Law always tried to get men to work by such progressively more
efficient incentives as slavery, market and socialist planning. These, at
least, was the Petrażycki’s ideas at the beginning of twentieth century,
before October’s revolution. Notoriously, his later ideas were left to
lost or unpublished works.
Third legal sub-trend is «the tendence to diminish motivational
pressure» (Lande 1975: 31). Legal punishment become less severe,
and rewards too tend to decrease: at least this is the general sub-trend,
only occasionally inverted by totalitarian, fundamentalist or populist
involutions. Evidently, Petrażycki’s evolutionism differs by far from
Enlightement’s progressivism, less because the former rejects any idea
of historical necessity than because it enphasizes the un-intentional,
unconscious, always virtually a-rational motivations of human action
(see Opałek 1961: 145).
Such motivations are important not only in the cognitive, realistic
and basically explanatory perspective of evolutionism, but also from
the technical-normative point of view of legal policy: the very last
horizon of Petrażycki’s discourse. From the latter point of view, the
law, be it natural or positive, official or unofficial, always fulfills two
paramount functions (for all these distinctions and a general
assessment of their sociologically-driven character, see again
Podgórecki 1980-81: esp. 192-193).
First general function is education, in the sense of the individual
socialization fulfilled by such legal institutions as family, churches
and neighborohood organizations. Second, more general function,
even more connected with Petrażycki’s psychologistic theory of law,
is motivation: i.e., how Podgórecki (1980-81: 192) put it, «providing
information and a stimulus to behave in a socially accepted way».
There is an unresolved tension, here, between cognitive-explanatory,
and normative-justificatory goals of his philosophy.
The third step of ethics’ or right’s evolution is dubbed by
Petrażycki love of the neighbor. This sort of amazing anarchically-
driven vision of ethical evolution, although, seems a coherent
continuation of the first and second stage, with their common origin in
individual emotions, their conflation of legal and moral, and of
cognitive and normative elements too. Here, the Petrażyski cognitive
narrative definitively gives way to a normative one, where Christian
terminology do fail to conceal its individualistic, liberal and
cosmopolitan inspiration.
“Love of the neighbor”, indeed, refers to an ultimate state of active
benevolence towards humanity. An active benevolence, mind you, due
neither to legal impulsions, bilaterally motivated, nor moral ones,
unilaterally so. Here, as Fittipaldi finally hypothizes, we are beyond
law and moral (see Fittipaldi 2015 and 2019). Love of the neighbor
doesn’t simply be a «practical axiom», as the young Petrażycki once
dubs it, by phrasing it like a leap in the dark. Rather, here Petrażycki
does full circle, by reconnecting the end to beginning of the story and
imagining a world in which anyone obey only himself.
Anyway, really Petrażycki does believes that the human world
could be governed only by the law of love? To such a question Finnis
(2019: 16?) answers, skeptickally, that our author «had a defective
image of the central morality of central tradition»: as if to evoke the
values of Christian morality could ever have been the main concern of
the atheist Petrażycki. Contrarywise, the latter searched for a secular
foundation for a secular ethics, although it sounds to us tentative,
defective, or both.
A more charitable interpretation of the love’s of the neighbor,
instead, could be twofold, by distinguishing, in a Humean, analytical
vein, the cognitive and normative sides of Petrażycki’s philosophy.
From a cognitive point of view, on the one hand, love of neighbor
seems only a principle of intelligibility of human history, if not a sort
of plot in the humanity’s narrative. From the normative point of view,
on the other hand, active benevolence is rather a regulative ideal
needing to be postulated by legal policy itself.
Here the larger perspective of legal policy opens: according
Petrażycki, law is only a mean in order to aproximate such an end.
After all, his legal dogmatics too contributes in promoting the value of
legality: well, his jurisprudence, far from being an end in itself,
mirroring mere facts, it needs to be realistic – that is,
programmatically open to the contribution of psychology, sociology,
economics… precisely in order to cooperate efficiently to legislation.
Pace Finnis, Petrażycki shares a Benthamite-like ideal: a true science
of legislation (Gorecki 1975).
Paradoxically enough, however, this legal policy must work just in
order to make law no longer necessary. An analogous paradox, after
all, pervades the Marxian philosophy of history too: political power
too must to make itself useless. In bot cases, here a completely secular
yet eschatological idea of history seems at work: maybe the god who
failed in Jacobinism, Marxism, and even democracy. Yet an idea
which in its own way confirms, third paradox, Finnis’ opinion that a
positivist, and even a realistic jurisprudence, can be only a part of a
normative philosophy of law.

7. By way of conclusion, I could say that in all cultures and languages

where terms as “law”, “right”, “justice” are translatable, there are
countless conceptions of law, right, justice. Each of these do
contribute to ethics itself: how did Petrażycki’s own philosophy, that
«was sometimes wrong, but it was always original» (Opałek
1961:132). More than many other previous and next legal
philosophers, indeed, Petrażycki still contributes to develop the
greatest skill of humans beings, and of jurists especially: what
Fredrich Nietzche and Robert Musil called the sense of possibility
(ger. Möglichkeitssin).

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