There are many versions and theories that are related to the issue of the origin of law. As one of the most common, along with natural law, historical, and sociological theories, one can single out the psychological theory of law.
The psychological theory of law was developed by the Russian scientist Lev Iosifovich Petrazhitsky at the beginning of the 20th century. Its essence is outlined in his work “The Theory of Law and State in Connection with the Theory of Morality.” Among the adherents and followers of this theory: A. Ross, G. Gurvich, M.A. Reisner. Psychological theory has had a major influence on the development of legal research, including modern American legal theory. L.I. Petrazhitsky directed his attention to the psychological side of the formation of legal behavior, taking it even beyond the intellectual side. He believed that the special nature of legal phenomena is in the emotional sphere, in the area of experiences, but not in the area of reason. He called this right intuitive, distinguishing it from positive law. To the latter he included norms, commands, prohibitions that were directed to persons who were in a subordinate relationship to law and legal relations. Intuitive law, according to Petrazycki, determines the psychological attitude of the addressee to objective, official (positive) law.
Thus, we can highlight the main provisions of the psychological theory of law, namely:
1) psychological theory of law, which distinguishes between positive law, officially operating in the state, and intuitive law, the origins of which are rooted in the psyche of people and consist of what they, their groups and associations experience as law;
2) positive law - current regulatory legal acts, law established by the state, the will of the legislator, in contrast to natural law;
3) intuitive right, which a person encounters at every step in his relationships with other people. Among the various psychological states of people, emotions come to the fore - impulsive experiences that prompt a person to perform certain actions.
The essence of the theory
The psychological theory of law was developed by Russian-born scientist Lev Iosifovich Petrazhitsky at the beginning of the 20th century.
Its essence is outlined in his work called “The Theory of Law and State in Connection with the Theory of Morality.” Among the supporters and followers of this theory were: G. Gurvich; A. Ross; M.A. Reisner. Psychological theory had a greater influence on the generation of ideas in the field of law, including American legal theory of the modern period.
L.I. Petrazhitsky directed his own attention to the psychological side of the formation of legal behavior, taking it even beyond the boundaries of the intellectual side. He believed that the peculiarity of the nature of legal phenomena lies in the sphere of the emotional, in the field of experiences, but not at all in the field of reason.
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He called this right intuitive, emphasizing its differences from positive law. To the latter he included orders, norms, prohibitions directed against persons who were subordinate to all law and legal relations separately. Intuitive law, according to Petrazycki, reflects the psychological attitude of the addressee to official, objective (positive) law.
Note 1
The father of the psychological theory of law, Petrazhitsky was a professor at the Faculty of Law at St. Petersburg University, and was a deputy of the 1st State Duma from the Cadets Party. After the October Revolution, he moved to Poland and headed the department of sociology at the University of Warsaw.
Petrazycki started from the fact that law is rooted in the psyche of the individual. A lawyer would act in the wrong way, he believed, if he began to look for a legal phenomenon somewhere in the space above or between people, in the “social environment”, etc., while this phenomenon occurs in his own head, in his own psyche, and only there.
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Interpretation of law from the perspective of psychology helps to establish legal science on the basis of reliable knowledge that is obtained through independent observation, that is, by the method of introspection; or observation of the actions of other persons.
The source of law, in accordance with the beliefs of the theorist, is human emotions. Petrazycki called his own concept “emotional theory” and found in it a contrast to other psychological legal interpretations that emerged from concepts such as collective experiences or will in the minds of individuals.
Thus, the following basic provisions of the psychological theory of law are highlighted:
- the psychological theory of law, which distinguishes between positive law, which officially carries out its own action in the state, and intuitive law, the basis of which is laid in the human psyche, is formed from what they, their groups and communities experience as law;
- positive law, which is represented by existing regulations, law established by the state, legislative will, in contrast to natural law;
- intuitive right, a person encountered it at every step in his own relationships with other people. Among the various psychological human states, emotions move to the foreground, that is, impulsive experiences that prompt a person to reproduce specific actions.
Psychological theory of the origin of law
tags:
Psychological, Theory, Law, State, Behavior, Society, Positive, Need
Law
is one of the most complex social phenomena. The search for legal understanding has been going on for many centuries. Legal understanding reflects people’s ideas about society, its criteria and spiritual values. And as human society develops, people’s living conditions, their ideas and ideals change, so the ideas about law change and will continue to change. There have always been and still are many different theories in the world that explain the process of the emergence and development of law. This is quite natural and understandable, because each of them reflects different views and judgments of different groups, layers, nations and other social communities on a given process, or views and judgments of the same social community regarding aspects of a given process of the emergence and formation of law.
The emergence of psychological concepts of law was associated, first of all, with the process of formation of psychology as an independent branch of knowledge.
The psychological theory of the origin of the state is a type of legal understanding based on the idea of law as a mental phenomenon. The psychological theory of the origin of state and law arose in the middle of the 19th century. It became widespread at the end of the 19th and first half of the 20th century. Its most significant ideas were formulated in the twentieth century. in the works of L.I. Petrazhitsky, Ross, M.A. Reisner and others. Its largest representatives are N.M. Korkunov, Z. Freud, Russian state scientist and jurist L. Petrazhitsky (1867 - 1931).
According to this theory, the state was formed as a result of the division of society according to psychological characteristics: some are only able to obey and imitate, others can rule, and this theory also considered the people as a passive mass seeking submission. The greatest representative of the psychological concept is Sigmund Freud. He outlined his thoughts on the origin of the state in his work “Psychology of the Masses,” in which he explained the essence of the existence and formation of any social community through a long study of the properties of the human psyche. Sigmund Freud came to the conclusion that human emotions and inclinations are the fundamental reasons for the emergence of the state. The essence of his theory is as follows: initially people are divided into two psychological types: the first are people with leadership qualities that come to the fore, that is, dominant by nature, and the second are people without a pronounced individuality, accustomed to following the instructions of others. The need of the first type is the subjugation of the social masses, and the need of the second type is the need to obey others. Proponents of the theory define society and the state as the sum of the mental interactions of people and their various associations.
5 pages, 2423 words
Topic 1. Theories of human behavior in organizations
Let's consider the main approaches that explain the nature and mechanisms of people's behavior in organizations. We will consider Western concepts of social behavior, because in Russian science in the 40-70s, the basic concept of “behavior” virtually disappeared not only in sociological, but also in psychological research. The theory of human behavior in an organization includes 2 areas: • psychological...
The task of this theory is to affirm the psychological need of a person to live within an organized community, as well as the feeling of the need for collective interaction. Also, representatives of psychological theory believe that society and the state are the result of human psychological development. E.N. Trubetskoy, referring to Spencer, points out that “there is a physical connection between the parts of a biological organism; on the contrary, there is a psychic connection between people—parts of a social organism.” Solidarity is thus a fundamental human characteristic. However, people are not equal in their psychological qualities. Just as physical strength distinguishes between the weak and the strong, psychological qualities are also different. Some people tend to submit their actions to authority. They have a need to imitate. The awareness of dependence on the elite of a primitive society, awareness of the justice of certain options for actions and relationships, etc., brings peace to their soul and gives a state of stability and confidence in their behavior. Other people, on the contrary, are distinguished by their desire to command and subjugate others to their will. It is they who become leaders in society, and then representatives of public authority, employees of the state apparatus.
To understand the law, it is necessary to become familiar with its types. So first L.I. Petrazhitsky in his work “The Theory of Law and State in Connection with the Theory of Morality” divides law into intuitive and positive.
Intuitive law, due to its independence from normative facts, is flexible and changeable and often has a specifically individual character. But it is intuitive law, due to stronger psychological motivation, that plays a decisive role in determining human behavior and often determines the emergence of positive laws.
Positive law
is a set of imperative-attributive experiences of individuals that arise under the influence of prescribed laws and established customs. In the field of positive law, three different things should be distinguished: *Normative facts, corresponding actions of people, decisions of legislators, etc. *Imperative-attributive experiences associated with the representation of these facts - positive law itself as a real phenomenon. *Corresponding norms, emotional “phantasms” generated by these experiences.
5 pages, 2143 words
Department of Public Relations, Political Science, Psychology and Law 2
Ministry of Education and Science of the Russian Federation State educational institution of higher professional education “Ivanovo State Energy University named after. IN AND. Lenin” Test work for the course “Law” Option No. 2 Completed by: Student gr. 2-75 Belyaev A.N. Ivanovo 2014. Problem on the topic of civil and family legal relations: Petrov sold Eremeev a typewriter...
The relationship between intuitive and positive law, according to Petrazycki’s theory, in each country depends on the level of cultural development and the state of the people’s psyche. Russia is “the kingdom of intuitive law par excellence.” It includes peoples at different stages of development, with many national legal systems and religions. In addition, the scientist believed, Russian legislation is in an unsatisfactory state, and its implementation is often replaced by the official action of intuitive legal beliefs. Petrazhitsky advocated for the unification of positive law in the country and the creation of a complete set of Russian laws. Advanced legislation, he said, accelerates the development of less cultured strata of society. So, psychological theory recognizes as law a specific mental reality—the legal emotions of a person. The latter are imperative-attributive in nature, and are divided into: a) the experience of positive law established by the state; b) the experience of intuitive, personal right. Intuitive law acts as a regulator of human behavior and is therefore considered as a real, valid law. Law that had official support from the state—law of the highest grade—received the status of official law. Unofficial law includes children's, family, tribal, party law, the law of criminal groups, etc.
Basic ideas of the theory
- The psyche of people is a factor that determines the development of society, including its morality, law, and state;
- The concept and essence of law are derived, first of all, through psychological patterns: legal emotions of people, which are imperative-attributive in nature, i.e.
- They represent the experience of a sense of entitlement to something (attributive norm) and a sense of obligation to do something (imperative norm);
- All legal experiences are divided into two types: experiences of positive (established by the state) intuitive (personal) law. Intuitive law acts as a regulator of behavior. A type of it is considered to be worries about gambling debt, etc.
The psychological theory of law is characterized by the following features:
1. It divides law into positive and intuitive.
12 pages, 5606 words
General characteristics of the main theories of the origin of the state
... theories of the origin of the state. Traditionally, theological patriarchal theory, contract theory, violence theory, irrigation psychological theory, etc. are distinguished. 0.0. Theological theory of the origin of the state One of the first theories of the origin of the state and law ... on the pursuit of happiness is that to ensure these rights people create governments whose just power is based on ...
Positive law “is defined as a body of rules of law.” It is presented in the form of normative and legal regulations officially in force in the state. 2. Intuitive or unofficial law is a purely mental phenomenon, a special state of the human soul. Covering emotions, ideas, experiences, etc., but departs from the monotonous pattern of human behavior, which is dictated by positive law. 3. Intuitive right has an individual, individually changeable character, its content is determined by the individual conditions and circumstances of everyone’s life, his character, upbringing, education, social status, professional occupations, personal acquaintances and relationships, etc. From here the conclusion is drawn that there is an intuitive law of a given class, a given family, a given circle of children, criminals, etc. 4. The psychological theory of law proceeds from the fact that “intuitive law is developed through mutual mental communication in different circles and circles of people with common interests opposed to the interests of others.” Moreover, this communication is based on their emotions. 5. This theory is idealistic in nature, because it believes that property, for example, does not exist as an objective reality, but is a figment of the imagination in people’s minds. In the same way, it gives a real character to an imaginary contract concluded by a madman with the devil, etc. This theory sees in psychology and even in the morbid imagination of the mentally ill the original source of legal relations that give rise to real rights and obligations.
5 pages, 2252 words
Psychological theory of the origin of state and law
... management, distribution, accounting, subordination. 2. Psychological theory of the origin of the state and law The psychological theory of the origin of the state was developed by L. I. Petrazhitsky ... state and law. Speaking about the scientific nature of the theory under consideration, one should agree with G.F. Shershenevich, who noted that to reduce all social life to the psychological interaction of people...
Consequently, this theory sees the main reasons for the origin of law and the state not in the economic, social and other environment surrounding them, but in the characteristics of the human psyche, in “impulses” and in emotions, which play a major role not only in a person’s adaptation to the living conditions of society, but also in the formation of state and law. According to Petrazycki, law performs distributive and organizational social functions. The content of the distribution function is expressed in the fact that the legal psyche endows citizens with material and ideal benefits: personal integrity, freedom of conscience, freedom of speech and others. The organizational function of law is to vest power in subjects. Despite the well-known theoretical complexity and “isolation” on the psychological side of the legal phenomena of social life, many of the fundamental provisions of Petrazycki’s theory, including the conceptual apparatus he created, are accepted and quite widely used by the modern theory of state and law, in the works of the Scandinavian school of law (Ross , Olivecrona, etc.). The psychological school had a noticeable influence on the development of the sociological direction in the USA and other countries.
Evaluation of the theory
The emergence of the psychological theory of the origin of the state was, to a certain extent, a great breakthrough in legal science. This became possible only at the end of the 19th century, when psychology began to emerge as an independent branch of knowledge. The interest of social scientists in the problems of psychological science increased noticeably when experimental research methods prevailed in it and large schools began to emerge that diverged in their interpretation of the psyche. The ideas of these schools, adopted by sociologists and lawyers, marked the beginning of the formation of new directions in legal science. It was rightly noted that the human psyche differs significantly from the psyche of animals. Man has a much more developed psyche. There is a sense of solidarity, a sense of collectivism. The merit of the supporters of this theory is the indication that psychological factors play an important role in the process of state formation. Thus, they tried to take a step away from the economic determinism that had completely taken possession of the minds of many. It is also true that the various interests of people (economic, political, cultural, everyday, etc.) are realized only through the psyche. All human actions pass through his psyche at the level of conditioned and unconditioned reflexes. The advantages of psychological theory are, first of all, considered to be the fact that it pays attention to psychological processes, which also act as a reality along with economic, political processes, etc., and also that the source of human rights is “derived” from the psyche of the person himself. A huge advantage of psychological theory is that psychological patterns and characteristics of a person are indeed the most important factors that have a direct impact on the process of formation of socio-political institutions. But the disadvantage of this theory is the fact that psychological reasons alone cannot serve as an unambiguous reason for the emergence of the state.
11 pages, 5398 words
The essence and criticism of the psychological concept of law L.I. Petrazhitsky
... this assumption by L.I. Petrazycki, who formulated the concept of a psychological understanding of law, derived theses: law exists in the human mind, law manifests itself in the form of motivational pressure on behavior... with the help of this theory, not only define law, but also explain the world. Critics believed that “not only law and the state can be seen as...
Criticism of the theory
Firstly, pointing to the role of psychological qualities in the process of state formation, representatives of psychological theory from the standpoint of the development of psychological science of that time could not give us a detailed doctrine of the role of the psyche in the formation of a state. Calling all the psychological qualities of people “impulses,” “emotions,” and “experiences,” they saw no difference between them. Meanwhile, the human psyche is divided into emotional, volitional, and mental spheres. In relationships between people, it is volitional qualities that are very important. On their basis, psychological subordination between people and a social “pyramid” are established, a type of which is the state. Strong willpower makes people natural leaders. It is precisely such people, as a rule, who become at the “helm” of a tribe, a union of tribes, and then the state.
13 pages, 6010 words
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TOPIC 3.6. “HUMAN PROBLEMS, ESSENCE, CONTENT.” The problem of the essence of man in the history of philosophy. Each person is forever determined by a single moment of his life, the moment when he met himself - this thought of Jorge Luis Borges reflects in a poetic form the main ideological question: “what is a person?” The problem of the essence of man and the related topic of self-knowledge is...
Secondly, speaking about psychological qualities, supporters of psychological theory emphasize that the desire for solidarity is inherent in people almost from birth. But what do we actually see? Since the beginning of their existence on earth, people have been constantly at war with each other, and war in ancient times was the rule, not the exception.
Of course, under the influence of the threat of destruction or diminishment of their vital interests, people are able to unite. But in this case, solidarity is also inherent in animals. For example, hyena dogs not only interact during the hunt, but also take care of the victims: they post guards around them and bring food from afar. We find the behavior of hyena dogs very attractive. But do all even modern people always do the same? The problem of burying the remains of soldiers who died during the Great Patriotic War has not yet been resolved. Excavations show that among the examined skeletons of human ancestors who lived millions, hundreds of thousands and even tens of thousands of years ago, there are no traces of successfully healed injuries in which a person loses the ability to walk. This means that people who received such trauma did not survive, since our ancestors probably abandoned the wounded to their fate. Thirdly, while welcoming the desire of the authors of psychological theory to moderate economic determinism, one cannot help but note that they go to the other extreme: they attach decisive importance to psychological factors in the process of state formation, that is, they essentially make the same mistake. Of course, psychological factors do not have a decisive influence on this process, but discounting them is an even more serious mistake than underestimating them.
In conclusion of the consideration of psychological theory, we note that the attempts of its supporters to find a universal reason that explains the process of state formation deserve a positive assessment. However, it seems that they have not completed this task. In reality, it is hardly possible to explain the reasons for the emergence and functioning of the state and law only from a psychological point of view. It is clear that all social phenomena are resolved on the basis of the mental acts of people and outside of them there is nothing social. In this sense, psychological theory explains many issues of social life that escape the attention of economic, contractual, and organic theories. The weak side of the theory is its too strong push towards psychological factors to the detriment of others (socio-economic, political, etc.), on which the nature of law also depends. one should agree with G.F. Shershenevich, who noted that to reduce all social life to the psychological interaction of people, to explain the life of society and the state by the general laws of psychology is the same exaggeration as all other ideas about society and the state. Certain properties of the human psyche certainly influence the emergence, development and functioning of the state and law, but they are not decisive, at least in the matter of the origin of the state and law.
Advantages of the psychological theory of law
The theory focused its attention on the psychological side of the influence of law; it has a close connection with the problems of the psychological mechanism of formation of lawful behavior. And in fact, if the chain of legal prescriptions is translated into the quality of actual lawful behavior of the individual’s experiences and feelings, his psychological impulses become the last link that directly comes into contact with a certain behavior, and in this way determines it. In fact, the law has not received the opportunity to independently regulate behavior in a different way, only through the intellectual-psychological human sphere.
