rudzinsky, petrazycki’s significance for contemporary legal and moral theory

Citation: 21 Am. J. Juris. 107 1976

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PETRAZYCKI'S SIGNIFICANCE FORCONTEMPORARY LEGAL AND MORAL

THEORY

Aleksander W. Rudzinski

Leon Petrazycki (a native Pole and a Russian citizen) published his mainworks on legal and moral theory during the first decade of this century inRussian. They remained almost completely unknown in the Anglo-Saxonworld. 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, Petrazyckiconcentrates on the actual workings of the human mind experiencing thesense of duty and the rightfulness of a claim. His theory of legal and moral"emotions" (impulses, active drives) has a distinct evolutionary Darwinisticflavor. His concept of law embraces a larger class of phenomena than thenarrow 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 affinitybetween his theory and the contemporary school of emotivism in Anglo-Saxontheory of ethics becomes evident. Petrazycki's theory serves him as a founda-tion for a "rebirth of natural law," a practical doctrine of social engineeringaimed 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 aboutPetrazycki's theory of law is that it is almost unknown to the Anglo-Saxon andEnglish-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 sketchyoutline of his views published in 19551 did not exert any significant impact onAmerican jurisprudence and is practically forgotten or ignored. The same appliesto a small number of articles and reviews scattered throughout American lawreviews.2 Petrazycki's name is conspicuously absent from Anglo-Saxon textbooksof 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 BostonUniversity Law Review, 1937, p. 793; Hugh W. Babb, "Petrazhitski's Theory of Law," 18Boston University Law Review, No. 3, 1938, p. 511; A. Meyendorf, "The Tragedy of ModernJurisprudence," Interpretations of Modern Legal Philosophies, Studies in Honor of RoscoePound (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 ofthe Nature of Law," 51 Columbia Law Review, 1951, pp. 59-82; George S. Langrod andMichalina Vaughan, "The Polish Psychological Theory of Law," Polish Law Throughout theAges, 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 LegalPhilosophy (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

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to the present writer is Edmond N. Cahn who was acquainted with Petrazycki'sviews and whose whole approach to law based on modem psychology seems tohave been influenced by the latter. 4 The skimpy remarks on Petrazycki dispersedthrough Wolfgang Friedmann's Legal Theory5 and Jerome Hall's Foundations ofJurisprudence6 fail to convey to the reader a picture of the originality, scope ofvision, intellectual vigor, and scholarly importance of Petrazycki's theory.

Needless to say that Anglo-Saxon philosophers active in the field of ethicaltheory are completely unaware of the fact that Petrazycki covered morality aswell as law in his impressive intellectual structure.

It is, maybe, high time to bring Petrazycki's ideas to the attention of theEnglish-speaking and English-writing world. It will be attempted to show thatthey are worth it.

II. PETRAZYCKI'S LEGAL AND PHILOSOPHICAL CREDENTIALS

There is no doubt whatever about Petrazycki's qualification as an eminentjurist. His deep and incisive knowledge of Roman and German law wassplendidly demonstrated in his early works written in Germany and in German,and connected with the draft of the German civil code (BGB) of 1896: DieFruchtverteilung beim Wechsel der Nutzungsberechtigten, 1892, and Die Lehrevorn Einkommen, vol. I, 1893, vol. II, 1895. They earned him the admiringdescription of German jurists: "der geniale Russe."7

It must be stressed that, toute proportion gardie, Petrazycki approached histask as theoretician of law along the lines and in the manner followed by suchgiants as Descartes and Spinoza. He elaborated first of all his own methodologyfor social sciences and his own version of scientific psychology before proceedingto 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 inRussian,8 deals at length and in an original and penetrating way with such purelyphilosophical and extralegal topics as: the creation of adequate theories andadequate classes, the classification of psychical phenomena, "emotions" as afourth separate category of psychic phenomena besides sensations, plus images,feelings, and acts of will. The exact nature of these "emotions" will be discussedin Section IV.

In a less detailed and clear-cut manner, Petrazycki worked out his ownpicture of ontology and society. True to his strongly antimetaphysical orientation

4 Edmond N. Cahn, The Sense of Injustice, An Anthropocentric View of Law (New YorkUniversity 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 theRussian 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 theTheory of Morality" which also appeared in Russian, vol. I, 1909, and vol. II, 1910, will befrom the Polish translation of vol. I by Jerzy Lande, Warsaw, 1959, and of vol. II by WiktorLe.niewski, Warsaw, 1960.

ALEKSANDER W. RUDZINSKI

and his close adherence to actual and factual experience, he discards any and allimaginary, abstract, and verbal objects as independent realities. There are onlyphysical objects and living organisms on the one hand, and psychic phenomenaon 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 anew line by Descartes (which, despite a number of efforts has still not been quiteovercome even now), was dominating the minds of philosophers and scholarsalike. Each entity or event was supposed to be either physical in nature orpsychical. 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 consideringthem as superindividual independent entities over and above the life and ex-perience of human beings along the lines of Durkheim. Petrazycki's approachwas a strict application of Occam's razor: Entia non sunt multiplicanda praeternecessitatem. Human society meant to him human individuals in their mutualinteraction and interrelations. His radical positivistic and empirical methodclearly implied the rejection of the reality of God, angels, and devils. He treatedthem as creations of human imagination and nothing else. Being deeply imbuedby Christian morality of the Gospels he never explicitly attacked the concept ofGod as a figment of human fancy. His examples are Zeus or the devil, but theinner 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 sharpand ironically sounding remark appears hidden in a footnote of the seldom readlast chapter (Methodenlehre) of Kant's famous Critique of Pure Reason, 1781.9Unfortunately, it still fully reflects the present state of jurisprudence nearly twocenturies after it was written. Petrazycki's valuable and lasting contribution tothis centuries-long and still inconclusive debate was to emphasize the non-theoretical, strictly professional and thus parochial, too narrow and restrictive useof the word "law" by lawyers in their scholarly capacity as academic teachersof law. He likened such pseudotheoretical use of the term "law" to the popularterm "vegetables" coined and used by cooks, greengrocers, and housewives, andembracing a mixed variety of plants having only one thing in common, namelythat 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 Juristas the well-known question 'What is Truth?' is to the Logician. It is all the more so, if, onreflection, he strives to avoid tautology in his reply," Kant, The Philosophy of Law, TheMetaphysical Principles of the Science oj Right as Contained in the Metaphysics of Morals,trans. by W. Hastie (Edinburgh: 1887), p. 44.


Petrazycki was "game"; i.e., all species of animals which hunters customarilyare hunting irrespective of whether they are birds or mammals of various kinds.No scientifically valuable findings and theories can be made about such aheterogeneous bag of objects.10

What Petrazycki stresses is that the theories of law proposed by jurists andtheoreticians contemporary to him artificially narrow down the scope of lawbasically to state law only, excluding from the class thus created, phenomenashowing the same characteristics as those included in it. Any theory based onsuch a restricted foundation would of necessity be similar, as Petrazycki puts itjocularly, to a theory proclaiming the law of gravity as applying to the class of10-gram cigars." Naturally, a further consequence of such a narrow basis wouldbe to announce incorrectly certain features of state law as applying to law ingeneral 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 methodologicalpostulate elaborated in his "Introduction" demanding the construction of "ade-quate" theories in social sciences. "Adequate" theories are those which deal withclasses of objects exhibiting common and specific characteristics discernible onthem by external or internal observation. The analogy which Petrazycki seems tohave 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 theoriescorresponding to adequate classes exhibits a genuine similarity to some passagesin Aristotle's Posterior Analytics, although most probably Petrazycki arrived athis conclusions independently. 12

According to Petrazycki, a scholar constructing scientifically valuable classesshould not only disregard professional use of language, but should not be guidedby the terminology of his native language as well. A sound distrust of thelinguistic usage of words in ordinary language is what he exhibits himself andadvises others to adopt. Far from believing that the historically evolved languagesrepresent the ultimate in accumulated wisdom and logic of humanity (a beliefprevalent in at least one influential wing of the modern Anglo-Saxon linguisticschool of philosophy), 13 Petrazycki considered ordinary language an essentiallypractical tool of interpersonal communication molded by practical nonscientificconsiderations, 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 hasbeen independently expressed by the British moral philosopher Patrick Nowell Smith: "If therewere 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 NowellSmith, 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," PrzegladFilozoficzny 1939, zesz. 3, "Petraiyckiego koncepcja twierdzenia adekwatnego na tle dawniejszychdoktryn pokrewnych," Z zagadnieh teorii prawa i teorii nauki Leona Petraiyckiego, Warszawa1969, 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 "OrdinaryLanguage Philosophers," p. 8.


when taken literally. 14 A thorough and consistent application of his method ledPetrazycki 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 ontologicalreality.

The ontological status of norms and rules of human conduct was felt asawkward and philosophically highly controversial at the turn of the 19th century.They could not find a proper place in a world picture composed exclusively ofphysical objects and events on the one hand, and of psychological data andprocesses on the other. It was clear that they did not belong in the world of atomsand molecules, of gravity, electricity, and magnetism. They somehow seemedto be connected with human consciousness and action, but nevertheless, couldnot be reduced to sense data, feelings, or acts of will.

Petrazycki took a revolutionary step: Law and morality should not belooked 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 torefrain from doing something. When contemplating or observing certain actionswe are experiencing a specific restraint not to perform them, a repulsion coloredby a mystical authoritative pressure as if coming from on high from some superiorsource. And contemplating or observing another kind of action we experience aspecific 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 toPetrazycki, of such psychological human experiences containing negative orpositive valuation and a dynamic consciousness of duty. The moral and legalnorm 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 byPetrazycki's critics, lawyers, moralists, and sociologists alike,15 was for all itsradical spirit only a consistent application of his strict ontological dualism and hisrejection 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 moralityis based by Petrazycki on the existence of two different kinds of dynamic "emo-tions." One sketched above (morality) contains a specific authoritative restraintimpeding a certain action, but without the conviction that another person has theright that this action should not be performed or a specific authoritative impulseto perform a certain act, but without the conviction that another person is entitledto 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, butthe beggar cannot demand them from me as due to him; he has no claim towardsme.

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.


When our sense of duty (our duty or somebody else's) is accompanied by afeeling that a specific action which is duty-bound is due to another person as thelatter'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. Thelegal "emotions" which are both imperative (duty) and attributive (claim, right)at the same time, have a tendency for example towards concreteness of what isdue while the moral obligations remain general. Morality does not prescribe howmuch I should give to the beggar.

An important feature of Petrazycki's theory follows immediately. Insidemorality, as he conceives it, there are no moral rights of persons, and thus thewhole area of justice (intuitive law) belongs to law. What traditionally has beenconsidered as moral sentiments influencing legal rules and modifying them is, inPetrazycki's theory, a process taking place inside the realm of legal psychology(intuitive law "emotions" producing changes in positive, official law). Hereagain, Petrazycki differs from traditional and professional use of language ter-minology.

The use by Petrazycki of the term "emotions" for the psychological processesand 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 andpain. What Petrazycki has in mind when speaking about "emotions" are motoricdrives, impulsive urges, active conscious patterns of behavior accompanied byintense feelings. Hunger, thirst, sex drive, curiosity, hunting, as well as fear,anger, revulsion are his favored examples of "emotions." The accent is on themotoric side not on the emotional one. They are composite but inseparablepsychological units, at once receptive and propelling, passive (stimulus) andactive (reaction) (pati-movere). They result in certain specific chains of actions(e.g., eating, drinking, sexual acts, flight). They transform the physiologicalfunctions of the organism, preparing the latter for the specific actions, and theyinterrupt the normal flow of conscious life concentrating attention on sense dataof appropriate objects and producing relevant imagined mental pictures. Thetotality of physiological and psychological effects of an "emotion" represents its"action," and each "emotion" has its own specific "action." Human activity ismotivated by a variety of "emotions." They represent the most primitive psycho-logical processes and have to be considered as complex units composed of asequence of sense data, images, feelings, and active behavior, products of a longevolutionary Darwinistic adaption. What zoologists and physiologists have con-sidered as teleological instincts with their respective specific actions, Petrazyckireanalyzed into his own "emotions" evolutionarily adapted to biological needs.1 6

Emotions as drives or impulses to action have to be clearly distinguished fromdecisions based on will; i.e., from choices deliberately made between alternateways of action. There are appetitive "emotions," where the objects attract us likehunger, thirst, or sex, and repulsive "emotions," where the object repels us likefear.

16 Introduction, pp. 469-476.


Besides such "emotions" which have specific well-defined objects, there are,as Petrazycki sees it, abstract or blank "emotions" which can be connected witha variety of actions as their stimuli and objects. Legal and moral emotions, aswell 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 emotionalrepulsion 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 ashis right. Persons A and B may be both extraneous and observed or imagined bythe 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 evenpsychical 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 bynecessity logically circular (definitio per idem) because the state itself is a legalphenomenon.' s

This does not contradict the adage that Ex lactis ius oritur or the truth thatrevolution (illegality) if successful creates new law. But as long as new law hasnot been generally accepted, two antagonistic kinds of law are competing andboth 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 lawas iussa ac vetita populorum and as sapientia aut cogentis aut vetantis adiubendum et ad deterrendum idinea.19 The Digest quoting Modestinus pro-claims: Legis virtus haec est: imperare, vetare, permittere, punire.20 It is hardlynecessary 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 auniform manner using only duties and reducing claims and rights to "normative situations" ofspecific persons was made by the present author in Prawo sasiedzkie '(Jagiellonian UniversityPress, 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 acceptedby it as binding-by an authority equipped with the power to lay down norms of a degree ofgeneral 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 tolay down norms and to enforce them by sanctions are not purely factual but are also regulatedby legal norms.

19 De legibus II caput 4 par. 9 and par. 8.20 1, 7, Digest, de legibus 1, 3.


What is wrong, according to Petrazycki, with such a view equating lawwith 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 suchas commands and prohibitions are concrete and specific human actions which areshort-lived in time and can be precisely pinpointed in space. Legal norms areconsidered as enduring in time and dominating large territories. 21

Petrazycki places his emphasis on two other arguments: (1) A commanddoes not create any rights, claims, or demands in the mind of the addressee. Theattributive element, however, is essential for legal thinking and the commandtheory cannot explain the appearance of rights and claims. They thus enter thelegal universe like the classic Deus ex machina.22 (2) What is more (and that isthe decisive argument), the command theory is not even able to account forlegal obligations. A command by a gunman or bandit to surrender money maycreate the necessity to hand him over all I have in my pocket, but it does notresult 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 acommand into a normative fact is my legal "emotion"; i.e., the acceptance of thecommanded 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 trustedby me. Only then will the command create a legal conviction in me consonantwith the command, and only then a legal norm will have been created in mymind. 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 salientfeature of an obligation the important connection between obligation andcoercion or compulsion. "The essential element of coercion is not the fact (thechance or the prospect) that evil will follow disobedience, but there should bean existing system of rules conferring authority on persons to prohibit behaviorand visit breaches of the prohibition with the appropriate coercive, repressive orpunitory techniques of the system." Here it becomes apparent that the com-mand theory is closely connected with the sanctions theory; i.e., the view thatconsiders sanctions, mainly coercion or force, as the criterion of legal norms andlaw in general.

Petrazycki rejects the sanctions (coercion) theory as well. He distinguishesbetween physical force as a sanction which, according to the famous Germanjurist, 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 theview 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.


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 andso on.

2 6

Petrazycki's arguments against the criterion of psychological deterrence areless sweeping. Threats of force are often futile because the culprit may not beaware of them, or is sure that the penalty will not be applied to him, or becausehe 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 importantlythere are legal norms which do not threaten any disadvantageous consequenceswhen transgressed (leges imperfectae). And the chain of sanctions theoreticallyinfinite actually stops very soon and the last norm with no threats attached to itremains a legal norm nevertheless.2 7 It should be noted that what Petrazyckirejects here is only the view that there is no law without threats and fear of evilconsequences. His main thesis is that the legal emotional experience consists in akind of psychic compulsion (impulse) to do something or to forbear. Suchimpulse 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 andthe class of legal phenomena is treated by Petrazycki as a strictly methodologicalone. His purpose is to formulate a class of objects about which a scientificallyfruitful theory could be created. Such a theory should be able to find some addi-tional specific traits or processes besides the characteristics which distinguishobjects of the class from other objects. These may be logical or causal connectionsand can be detected by deductive reasoning or by empirical induction using J.Stuart Mill's methods of agreement, difference, or concomitant variations inexternal observation or introspection, such observation being simple or experi-mental.

This self-imposed task was remarkably well-fulfilled by Petrazycki. Heformulated and discussed in detail the following causal tendencies which can befound in the functioning of legal psychology but which are absent from thefunctioning of moral psychology: (1) A tendency to reach the implementationof 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 attributivecharacter. Morality, according to Petrazycki, has a peaceful character. WhatPetrazycki 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 legalsystem, 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 andto decide in case of conflict what everybody's duties and rights are. Such patternsmay be customary law or statute law. Accompanying such patterns is thetendency 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 tendencyin 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 publicscrutiny. 31

The unifying tendency of legal psychology results also in the submission oflegal conflicts to third disinterested persons to establish the relevant facts and topass 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 inorganized crime).32

All these tendencies of legal psychology which represent a stronger and moreeffective 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 imperativeis 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 thelaw, the distributive function and the organizational one. The first function ofdistribution 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 distributedby 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 andattributing to other persons the duty to obey. State authority is only one of theexamples. Parents and children, slave owners and slaves, feudal lords and serfs,teachers and pupils, chairmen and meetings, drill sergeants and recruits, bishopsand flocks, are among the other examples. Petrazycki distinguishes authorities ofa social service character which include the obligation to take care of the welfareof 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 lawscould be equally valid in the social sciences and thus both kinds of sciences could form anadequate 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) .35It 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.


corresponding duties on others. The emergence of an umpire-judge in sportsand some games and the well-known turbulent behavior of sport fans indignantabout alleged violations of rules are typical symptoms of an active legalpsychology. 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 theirparents, maids, and teachers. Rules about the time to go to bed or making yourown bed, washing hands and ears, access to TV, and so forth, create a complexset of rights and obligations clearly understood and not often transgressed. Thereare conflicts about ownership of toys or their damage or destruction, some barterof stamps or other collector's items. Such conflicts are mostly decided by Momor 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 havealso an attributive-imperative character and may evoke strong indignation andretaliatory reactions when flagrantly violated.

The mutual relations among members of a criminal gang are exactlyanalogous to orthodox legal relations. Petrazycki often speaks about "delinquent"(felon) law without mentioning explicitly the Sicilian Mafia or its Americanbranch. Naturally, youth gangs in American cities belong in the same category.

Having rejected sanctions and force as criteria of law, Petrazycki considersthe mutual relations of a couple of lovers, the relations between friends, betweenbrothers, and between persons sharing a common household, and naturallybetween members of a family, as legal phenomena governed by attributive-imperative emotions.

Needless to say, religious (sacral, church) law is for Petrazycki as good alaw as any other.

Even when a mentally unbalanced person enters into a contract with thedevil promising him his soul for the guarantee of worldly success, such a factmust also be considered as a legal phenomenon.

Such a wide field represents in Petrazycki's view the class of law and hisjurisprudence constructs a theory of regularities and causal tendencies governingthe functioning and the evolution of all the components of this broad legalarea.

VII. SOME PROBLEMS PETRAZYCKI DID NOT CONSIDER

It must be noted that Petrazycki does not discuss nor does he answer thequestion how legal "emotions" originated in the human species nor how theyoriginate in the child's mind. We can only guess why he did not tackle thisproblem.

In view of this omission, somebody might conceivably raise an objectionagainst 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.


objection, however, would be completely unfounded. Petrazycki's class conceptof 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, aswell 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 moraland legal terms as duty and right do not describe any discernible, observabletraits 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 thetheory of ethics places Petrazycki in a long line of distinguished Anglo-Saxonphilosophers. David Hume formulated it clearly and consistently in his Treatiseof Human Nature: "Vice and virtue are not matters of fact.... Take any actionallow'd to be vicious. Wilful murder, for instance. Examine it in all lights, andsee if you can find that matter of fact, or real existence, which you call vice. Inwhichever way you take it, you find only certain passions, motives, volitions andthoughts. 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, whicharises in you, toward this action. Here is a matter of fact; but 'tis the object offeeling, not of reason. It lies in yourself, not in the object. So that when youpronounce 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 statesthat "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.


from the constitution of your nature you have a feeling or sentiment of blamefrom the contemplation of it."'39

Traces of emotivism can be found in Shaftesbury40 and Adam Smith.4 1

E. A. Westermarck's classic works follow the same line as Hume. Wordssuch as "right" and "good" express a specific emotion, that of disinterested andimpartial approval of certain actions; "bad" and "wrong" express an equallydisinterested and impartial indignation. They are implanted in us by socialpressures.

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 theworld, they express the emotional attitudes of those who utter them. He stressesthat the expression "stealing money is wrong" is not a factual statement, noteven a statement about my own state of mind, but merely expressing certainmoral sentiments. The function of ethical symbols is purely emotive. Ethicalstatements 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. Ethicsbelongs in the department of psychology and sociology. 43 The coincidence ofAyer's views with Petrazycki is striking. While Ayer is basically polemical andnegative, Petrazycki elaborates a constructive view of "emotions" as motivationsof human actions and behavior of the very person who experiences them, and notmainly and certainly not exclusively as sources of commands or suggestions toother persons.

Bertrand Russell's views concerning ethics were following, at least in hisfirst period, basically the same lines as Ayer's. 44

Alf Ross considers the words "just" and "unjust" as merely an "emotionalexpression" otherwise "entirely devoid of meaning." "To evoke justice is thesame thing as banging on the table; an emotional expression which turns one'sdemand into an absolute postulate." 4 5

C. L. Stevenson thinks that a moral word does more than communicate thespeaker's attitude (feelings), it tries to create moods and to incite people toactions or attitudes. Ethical judgments are social instruments; they propagatethemselves by contagion of feelings. Compared to Ayer, Stevenson's emotivism isof a more moderate variety. According to the latter, ethical terms are emotivebut they are not purely emotive. Cognitive elements are also present in andrelevant 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.


Stevenson stresses the difference between "beliefs" (theoretical) and "at-titudes" (practical; i.e., emotional and motoric). His "attitudes" seems rathersimilar to Petrazycki's "emotions" lacking only the biological flavor of the latterwhich Petrazycki transferred from the field of biology into the psychologicalrealm. 47 Petrazycki is equally emphatic as Stevenson in stressing the contagiousspreading of moral feelings (emotions) expressed in moral judgments and thecreation 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 legalemotion as a motivating factor on the behavior of the person experiencing suchan emotion in foro interno, prior to and independent of the fact whether or nothe expresses his attitude in a statement addressed to somebody else. His methodis introspection plus external observation, and not analysis of ethical language.But a close affinity of results is obvious. Stevenson deals in subtle detail withmoral arguments used in support of moral judgments to persuade and influencethe hearer's and addressee's attitude and conduct, as well as arguments used inrebuttal. Petrazycki deals only with "normative facts" as sources of duties whendealing with positive morality and positive law; i.e., where we experience ourduty 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 requiredas 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 pinpointwith 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'smind), public subjectivism (moral judgments assert the existence of a feeling orattitude 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 acertain feeling or attitude in the person making the judgment), and error theory(moral judgments refer to something outside the speaker's mind but are alwaysfalse, since all that the speaker has a right to say is that he has a certain feeling orattitude); 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 withan emotive theory and with causal subjectivism. It explains the frequence of thetruth of public subjectivism as a result of a long evolutionary process of adapta-tion and contagion. It succeeds in explaining how attitudes ("emotions") becomeimperatives 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


A clear and radical formulation of the error theory amalgamated with theemotive theory has been accomplished by John Mackie. He concedes that whenpeople make moral judgments, they are asserting that an action or a person hasa certain quality of goodness or rightness, or whatever it is; i.e., they are makingobjective claims. But since there is no such "independent" quality, all moraljudgments are false. This universal error is due to people's projection in a certainway 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 apulsiveapproval or repulsive disapproval. Furthermore, a moral judgment is forPetrazycki a product of a moral "emotion" and does not represent the startingpoint of his analysis.

In conclusion, it may be pointed out that the radical feat performed byPetrazycki was the consistent and iconoclastic application of subjectivism plus theerror theory to the realm of law in the first place and morality as well, stressingthe close affinity of those two realms. In contradistinction to most Anglo-Saxonemotivist theories of morality, Petrazycki's system far from being purely negativein 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 byhis critics and, ironically, also often by his disciples and supporters as well. Theimpressive edifice of his system of theory of law has been painstakingly built byhim in order to serve as a firm modem scientific foundation for what he conceivedas the practical science of "policy of law," a kind of human engineering by meansof legislation, a science how to influence and change human motivation andcharacter by legal enactments. This science of legislative policy was destinedaccording to Petrazycki to fulfill the same progressive function which the doctrineof natural law performed in the seventeenth and eighteenth centuries.

While participating in the last decade of the nineteenth century in thepreparatory work for the new German civil code (BGB) going under way inGermany, Petrazycki deplored the narrow-minded, strictly utilitarian and oftencynical mental climate prevalent in German jurisprudence at that time. He wasmorally repulsed by the influential school of the famous Rudolf Ihering who sawthe role of law in the protection and satisfaction of egoistic material individualinterests and advocated the fight for private rights (Der Kampj urns Recht,1872). Petrazycki attributed the rejection of natural law at the beginning of thenineteenth century to the political reaction which overtook Europe after theFrench 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.


contemporaneously binding law as a retrogressive step which has to be remediedby a renaissance of a modem, scientifically well founded natural law based on apsychological science of law comprising both positive and intuitive law..5 2

Accordingly, already in his early comprehensive work, Die Lahre vomEinkommen (vol. II, 1895), he openly proclaimed the "Rebirth of NaturalLaw."' 5 3 This invocation of a proud past for his new practical science was notwithout justification. The new science of legal (legislative) policy was consideredby 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 tostrive in the field of policy in general, and legal policy in particular, is the moraldevelopment 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 legalnorms is transitory and should be replaced by another adapted to the achievedlevel of social mentality. The ideal is the achievement of a perfectly socializedhuman 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 amental 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 evolutionand gradual adaptation of the law to the social mentality and by a psychologicaltheory of law which Petrazycki developed. He conceived law as a causalpsychological factor of social life which acts in two ways: (1) as a motivationalstimulus releasing or repressing certain actions and forbearances, and (2) in thelonger run as an educational factor consolidating and developing certain inclina-tions and traits of human character and weakening and weeding out certainother inclinations and traits, thus gradually bringing behavior and charactersin conformity with the content of binding legal norms.-57 Accordingly, the task ofthe science of legal policy (legislative human engineering) is: (1) a rationaldirection 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 antisocialinclinations and by planting and consolidating opposites; i.e., prosocial inclina-tions.5

8

This program represented a resurrection of the concept of natural law inthe spirit of Enlightenment anchored not only in the idea of progress but alsoof 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 CivilCode (BGB) was that it perpetuated the oppression of women (Introduction to the Science ofPolicy of Law, 1896, trans., Warsaw, 1968, p. 178).


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 conceptionshave been forgotten.

The invoking by Petrazycki of the hallowed traditional name of "naturallaw" for his science of legislative policy seems by no means pretentious or over-drawn. Kelsen was entirely correct when he stressed that "the natural lawdoctrine stands and falls with the assumption: value is imminent in reality." 60

Petrazycki placed legal and moral values into the human psyche and tried toformulate how they are working in the mental life of the individual and in socialmass behavior. For him law is a natural phenomenon and knowledge of thetendencies governing its working enables the legislator to guide its evolutiontowards 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, andmany eminent minds have pondered about it. The problem is by no meansrestricted 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, aconvenient tool of our language, a purely linguistic and logical abstraction similarto the distinction between the shape and color of an apple. The alternativestheoretically possible are very roughly the following: (1) the class of legal andmoral phenomena may be composed of the same constituents having both legaland moral characteristics; (2) these two classes are mutually exclusive-nomoral phenomenon has legal traits and vice versa no legal phenomenon has moraltraits; (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 acommon but qualitatively different source like religion and magic; (2) or, lawmay be the evolutionary origin of morality (Hobbes and Nietzsche 61); (3) or,conversely, morality may be considered as the source of law. 62 Obviously, theanswer depends in large measure upon the question what we consider to be alegal phenomenon, what a moral one, and what a religious or magic one. Whatcomplicates the matter and makes it more difficult is the fact that the area usuallycalled morality or ethics is by no means homogeneous. It embraces the Sermonon 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 andduty ('sacred? duty) took its inception . . ." "the feeling of guilt and personal obligation hadits inception in the oldest and most primitive relationship between human beings, that ofbuyer 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 divinelaw as revealed in natural law [Summa Theologica, Books I-I, Question 93, Art. 3 andQuestion 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 reasonor God's will.


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 withexalted ideals of human perfection which hardly can be expected to be practicedby the masses of ordinary mortals. A special branch is represented by moralduties towards oneself. Needless to say, widely differing moral systems can befound in different civilizations and several competing and incompatible onesinside most countries. A much less flagrant divergency exists in what traditionallyis 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 tofollow connected with such valuations as "right" or "wrong," "just" or "unjust,"(intrinsically) "good" or (intrinsically) "bad." Petrazycki concentrates on anintrospective analysis of moral and legal experiences and treats moral and legalnorms (rules) as "emotional fantasmata,"6 3 as "reflected images of normativeexperiences," 6 4 or as psychological "projections"65 in line with his thoroughempiricism, his strictly factual approach, and his anti-metaphysical battle againstany kind of fictions in social sciences. He does not start from an analysis of moraland legal rules, verbal expressions, judgments, dialogue, or reasonings; his startingpoint is not the dissection of meaning of moral and legal language. He findsintrospectively moral and legal experiences very similar, both consisting in aninner 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 justicetraditionally treated by moralists, theologians, and philosophers as part ofmorality, was included by Petrazycki into law and became the object of juris-prudence. Furthermore, moral discourse has been deprived of the concept ofmoral rights, claims, and demands. 66 What was left could only be consideredas legal rights and claims, positive or intuitive law rights.

Such a dividing line was adopted by Petrazycki quite deliberately andconsciously. He asks in his magnum opus a rhetorical question: "Would it notbe 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) aserious and essentially important question." 67

He answers his own question as follows: "All theses [formulated byPetrazycki] concerning law and its elements (with the exception of theses aboutpositive law and normative facts) apply also to intuitive law. Otherwise theywould be lame."168 Lame means that the theory would be in such case related toa too small class of objects, like the law of gravitation when restricted to 10-gramcigars 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," 57journal of Philosophy, Number 7, 1960, pp. 254-258.

6? Theory, vol. II, p. 247.68 Theory, vol. II, pp. 247-248.


(justice) is subject to the same causal tendencies and governed by the samepsychological and sociological regularities as the field of positive law. That is aquestion which can be verified or falsified on a factual basis and not a matter ofarbitrary terminology.

It seems to the present writer that Petrazycki's answer to his rhetoricalquestion is correct. The whole realm of attributive-imperative experiences has tobe investigated as a unit irrespective of traditional terminological divisions andinveterate scholarly habits. Obviously a mutual interaction between intuitive lawprocesses (justice) and positive law phenomena is by no means negated by theacceptance of the view that there is sufficient reason to treat both of them asconstituting a common class for scientific purposes. There can be no correcttheory 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 moralitywas almost exclusively represented by the teachings of Jesus as related in theGospels. In spite of his thinly veiled atheism in ontology he was in ethical andsocial matters as deeply and sincerely a Christian as his severe critic and con-temporary, Leo Tolstoy. The evangelical precepts of humility, chastity, love, andmercy were for him not recommendations guiding the individual human soul tomoral perfection and ultimate salvation, but binding imperatives, moral dutiesin the same psychological category as the prohibition of murder. The only slightdeviation from this line was made by him in relation to the evangelical preceptsnot to resist evil. He considers them as "general precepts, figurative and not to betaken literally," 6 9 but still treats them as experiences of an imperative obligationand not as a recommendation only or an advice. Incidentally, a case couldprobably be made based on some texts of the Gospels that the turning of theother cheek and letting the man who sued you to have thy cloak also are notmeant as strict duties (moral or even religious ones). The same applies to sellingyour property and joining Christ. They are roads to perfection. 70 It is apparentlynot a sin when I fall to turn the other cheek or if I fail to let him have my cloakalso.

The point to be made here is that the moral experiences display intro-spectively a greater variety of psychic phenomena than Petrazycki admits. Theyinclude (so it seems to the present writer) directives, persuasions, advice, andrecommendations besides strictly imperative experiences of a rigid and bindingduty to act.

Furthermore, Petrazycki seems to consider the consciousness of duty asessentially and qualitatively the same across the whole spectrum of moral andlegal experiences. It is, however, somehow odd to consider, as Petrazyckipresumably does, the horror and fascination and repulsion we are experiencingwhen 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.


case (like the Manson case in California, or the torturing and murder of a childby his mother) as the same psychological emotion of disapproval and repulsionas the one we experience when told about somebody's failure to pay a ticket fora 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 actionmay 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 devotehis adult life to the care of lepers in the African jungle. He who becomes a saintmay well consider his way of life as his sacred duty to God (here is the kernel oftruth in Petrazycki's theory of morality), but hardly anyone else demands it orexperiences his conduct as obligatory. Morality deals not only with duties. Thereare moralities of duties and moralities of human aspirations to achieve the heightof excellence and of human perfection. 71 There is quite a distance between themorality of the social minimum and the morality of ideal individual moral per-fection; between the viable society of average human beings and its minimumrequirements and a utopian community of saints. But, morality embraces both.

Another question not restricted to morality could be raised. In spite of hisclearly naturalistic and evolutionary approach to moral and legal psychologywhich shows strong Darwinistic overtones, Petrazycki does not explain the originof these emotions. Why? Neither the phylogeny in the human species nor theontogeny 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 isabout children's law as a separate category of law experiences; e.g., the child'sclaim to ownership of his toys, keeping promises in children's barters, and soforth.

There are two hypothetical explanations why Petrazycki avoided thissubject. First, he may simply have assumed that legal and moral emotions arehereditary 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 highlyhypothetical and speculative and impossible of direct verification or falsificationbecause we do not remember the experiences of our earliest childhood and we donot have access to the thinking and feelings of our primitive forebears. Hecertainly was not a behaviorist, nor a psychoanalyst. He evidently adhered to theproud 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 theoryof 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 MoralObligation," 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.


infant's second year when it begins to draw a distinction between itself and outerreality.72

A similar attempt has been made by the known psychoanalyst, ErichFromm.73 Analogous psychoanalytical studies into the origin of moral and legalpsychology in childhood have been undertaken by Walter Lippmann, FranzRudolf Bienenfeld, Edmond N. Cahn, and Albert A. Ehrenzweig. 74

Another very influential attempt to explain the origin and evolution of moraljudgments 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, butmost 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 attitudeand reactions of kindergarten and school children in the French-speaking part ofSwitzerland towards rules of children's games and rules governing their behaviortowards 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 twelveyears 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 ofregularity. Only afterwards, a consciousness of obligation emerges; i.e., a percep-tion of regularity and a feeling of respect and authority induced by social contactwith parents and adults. The respect for the rule of conduct is unilateral. Therule is not only obligatory but sacred and coercive as well. The child imitatesthe conduct of elders but remains egocentric, unable to differentiate between theego and the social environment, and thus his mind is unwittingly dominated byits own tendencies. Nevertheless, all the opinions and commands which the childadopts appear to him to be endowed with a transcendental origin. It is a moralityof 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" andPiaget's about moral judgment between the ages of two to seven, one would bealmost 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 beestablished 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; andT. 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 PressiGlencoe, Illinois: 1960), pp. 3, 80-87; see also pp. 312 ff.


unilateral respect and autonomy replaces imitation. The rule followed by thechild becomes rational; i.e., it appears as the fruit of a mutual engagement, nowfreed from individual caprice and submitted to the control of reciprocity. 76

Piaget's description of the second stage governed by mutual respect andreciprocity comes very close to Petrazycki's characterization of legal "emotions"with their attributive-imperative elements. Petrazycki fully recognized theexistence of intellectual elements in legal experiences but does not attribute amotivating and a driving force to them. Piaget's theory is also in conformity withPetrazycki's conviction that in the course of evolution moral sentiments tend totransform themselves into legal enactments, law being a stronger motivatingforce than morality and having greater educational value.

CONCLUDING REMARKS

Petrazycki shifted with vigorous determination the emphasis in jurisprudencefrom the traditional obsession of jurists with legal rules, codified or customary,and from abstract legal principles to the actual workings of the human mindexperiencing the sense of duty and the rightfulness of a claim. He radicallyrelegated the legal norms to the realm of psychic projections and considers themas verbal formulations of an "emotional" experience. Such an approach shouldnot be completely alien to those American jurists of the realist school who ac-cepted Oliver Wendell Holmes's famous dictum: "The prophecies of what thecourts 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 thebooks." Such well-known names as Karl Llewellyn, Jerome Frank, and F. S.Cohen have to be mentioned. The proliferating literature concerning the problemhow judges decide cases deals consistently with the psychology of the latter.Petrazycki fully recognized judges and courts as typical products of the workingof 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 withthe Anglo-Saxon school of emotivists in ethical theory. The border line drawn byhim between legal and moral psychic experiences is strikingly similar to JeanPiaget's differentiation between two periods in the evolution of the child's moraljudgment.

And Petrazycki's stress on a variety of human specific "emotions" such ashunger, thirst, sexual drive, hunting drive, and so forth, and his views that dueto 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 theinherited human instincts hypothesis by such much discussed ethologists asKonrad 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 acompetent 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 presentintellectual trends and preoccupations.

Petrazycki introduced a much wider concept of law than the traditionalcherished stubbornly by professionals. We find law also in churches, in sports, inthe children's room, and in the Mafia, too. He included intuitive law and thusjustice as a kind of legal phenomenon into law itself, and not only as a topic ofphilosophical speculations about morality and the ideal society. The presentwriter considers those steps as important scholarly achievements of lasting value.

His concept of morality seems too narrow. But, let us remember thatPetrazycki, a great and creative mind, was first of all an eminent jurist who triedto demonstrate the close affinity of law and morality and their constant mutualinteraction in the minds of men. In both these endeavors his success cannoteasily be denied.

rudzinsky, petrazycki’s significance for contemporary legal and moral theory

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