Abstract
This paper considers the ways in which Leon Petrażycki and Eugen Ehrlich employed the psychological notion of emotions in defining the law. Both scholars defined the law by referring to special kinds of emotions: bilateral emotions in Petrażycki’s conception and repulsive emotions of experiencing the wrong behavior of other people, according to Ehrlich’s legal sociology. On the basis of a comparison between the theories of Petrażycki and Ehrlich, the author asserts that both theories hinge on similar methodologies and philosophies. This approach has evident affinities with the conception of law developed by Axel Hägerström and other Scandinavian realists. This analysis suggests a parallel in the development of the realist, sociological and psychological approaches to the law in the first decades of the twentieth century, uncovering certain trends in legal scholarship that underpinned this development.
This paper is based on the presentation made by the author at the XXVII World Congress of the International Association for the Philosophy of Law and Social Philosophy (Washington DC, 27.07.2015-01.08.2015). The author is grateful to Professor Roger Cotterrell, Dr. Maksymilian Del Mar, Professor Edoardo Fittipaldi and other participants of the Workshop “Law, Emotion and Society” for their valuable comments, as well as to the anonymous reviewer. The present research has been conducted thanks to financial support from a grant from the National Research University Higher School of Economics, St. Petersburg, Grant No. 18–IP–01.
This is a preview of subscription content, log in via an institution.
Buying options
Tax calculation will be finalised at checkout
Purchases are for personal use only
Learn about institutional subscriptionsNotes
- 1.
Kelsen’s Reine Rechtslehre was in fact much subtler than claiming that legal regulation is made up only of rules: he called for a purification of legal sciences and their methods, and not the law itself. The law is a multifaceted social phenomenon which can be examined from different perspectives: that of lawyers is, for Kelsen, connected only with normative analysis.
- 2.
Max Weber’s Verstehende Soziologie provided for more insights about the machinery of law in the society and about how the law really controls human behavior. See: Hunt (1978).
- 3.
For the sake of brevity, we mention the American legal scholarship as belonging to the European tradition, which nonetheless is subject to some reservations in other respects.
- 4.
However, the conceptions of legal sources developed by Bentham or Austin could also be adequately applied to accommodate an examination of these aspects.
- 5.
The Kelsenian conception of law as of an act of will did not imply that Kelsen accepted only the state law—his theory recognized customary law as well and he admitted that law can be created without the state. In his theory, Kelsen opposed the Gesetzpovisivismus of the nineteenth century demonstrating that the state and the law are interrelated notions. Kelsen’s idea of the purification of the science of law did not imply that the law should be studied without reference to the social practices of the law-application—the Austrian legal philosopher admitted that both social practices and moral convictions are important for understanding how the law works: his main idea was only to explain the validity of the law without such references.
- 6.
It can be reasonably asserted that newer analytical and natural-law doctrines provide for a broader conceptualization of the law that takes into account the plurality of sources and admits that the law and its validity can be justified with reference to different sources.
- 7.
As mentioned above, Kelsen’s conception also denied the statutory positivism in this aspect arguing that the normative and the factual sides of the law could be respectively analyzed by the normative science of law (Pure Theory of Law) and sociological science of law, this latter dealing with casual elements of the law.
References
Adams WA (2017) Popular culture and legal pluralism. Narrative as law. Routledge, London
Antonov M (2011) History of Schism: the debates between Hans Kelsen and Eugen Ehrlich. Int J Constit Law 5(1):5–21
Bongiovanni G (2016) Legal positivism in the first half of the 20th century. In: Pattaro E, Roversi C (eds) A treatise of legal philosophy and general jurisprudence. Volume 12: legal philosophy in the twentieth century: the civil law world. Springer, New York, pp 1251–1305
Brinkmann S (2011) Psychology as a moral science. Perspectives on normativity. Springer, New York
Cotterrell R (2006a) Community as a legal concept? Some uses of law-and-community approach in legal theory. NoFo 2:15–26
Cotterrell R (2006b) Law, culture and society: legal ideas in the mirror of social theory. Ashgate, Aldershot
Cotterrell R (2015) Leon Petrażycki and contemporary socio-legal studies. Int J Law Context 11(1):1–16
Dyevre A (2014) Law and the evolutionary turn: the relevance of evolutionary psychology for legal positivism. Ratio Juris 27:364–386
Ehrlich E (1936, first published in 1913) Fundamental principles of the sociology of law. Harvard University Press, Cambridge
Fittipaldi E (2012) Everyday legal ontology. A psychological and linguistic investigation within the framework of Leon Petrażycki’s theory of law. LED, Milan
Griffiths A (2009) Anthropological perspectives on legal pluralism and governance in a transnational world. In: Freeman M, Napier D (eds) Law and anthropology: current legal issues, vol 12. Oxford University Press, Oxford, pp 164–186
Halpérin JL (2012) Law in books and law in action: the problem of legal change. Maine Law Rev 64(1)
Hart HLA (1961) The concept of law. Oxford University Press, Oxford
Hunt A (1978) Max Weber’s sociology of law. In: Hunt A (ed) The sociological movement in law. Palgrave Macmillan, London, pp 93–133
Leiter B (2007) Legal Realism and legal positivism reconsidered. In: Leiter B (ed) Naturalizing jurisprudence: Essays on American legal realism and naturalism in legal philosophy. Oxford University Press, Oxford
Petrażycki L (1897) Vvedenie v nauku politiki prav. Univesitetskie issledovaniia
Podgorecki A (1980–1981) Unrecognized father of sociology of law: Leon Petrażycki: reflections based on Jan Gorecki’s sociology and jurisprudence of Leon Petrażycki. Law Soc Rev 15(1):183–202
Priel D (2015) Toward classical legal positivism. Virginia Law Rev 101:987–1022
Shaskolsky-Sheleff L (2000) The future of tradition: customary law, common law, and legal pluralism. Routledge, London
Taekema S, van Klink B, de Been W (eds) (2016) Facts and norms in law: interdisciplinary reflections on legal method. Edward Elgar, Cheltenham
Trevino JA (1998) Toward a general theoretical-methodological framework for the sociology of law: another look at the Eastern European Pioneers. In: Ulmer J (ed) Sociology of crime, law and deviance. JAI Press, Greenwich, pp 155–202
Twining W (2010) Normative and legal pluralism: a global perspective. Duke J Comp Int Law 20:473–518
Van Hoecke M (ed) (2011) Methodologies of legal research. Which kind of method for which kind of discipline? Hart, Oxford
Author information
Authors and Affiliations
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2018 Springer Nature Switzerland AG
About this chapter
Cite this chapter
Antonov, M. (2018). Eugen Ehrlich and Leon Petrażycki: Are Emotions a Viable Criterion to Distinguish Between Law and Morality?. In: Brożek, B., Stanek, J., Stelmach, J. (eds) Russian Legal Realism. Law and Philosophy Library, vol 125. Springer, Cham. https://doi.org/10.1007/978-3-319-98821-4_7
Download citation
DOI: https://doi.org/10.1007/978-3-319-98821-4_7
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-319-98820-7
Online ISBN: 978-3-319-98821-4
eBook Packages: Law and CriminologyLaw and Criminology (R0)